Re Larkin, Gwendoline Mary Clark ex parte Official Trustee in Bankruptcy & Anor

IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT OF THE
STATE OF VICTORIA
GENERAL DIVISION No VB 2861 of 1992

RE: GWENDOLINE MARY CLARK LARKIN

A discharged bankrupt

EX PARTE:

OFFICIAL TRUSTEE IN BANKRUPTCY
Applicant

-and-

GWENDOLINE MARY CLARK LARKIN

Respondent

Coram: Olney J

Place: Melbourne

Date: 15 December 1995

REASONS FOR JUDGMENT

On 28 November 1995 the Official Trustee in Bankruptcy filed an application (the stay application) seeking amongst other things an order that the respondent "be stayed from filing any further application for annulment of her bankrupt estate being numbered VB 2861 of 1992 until further order". The stay application came on for hearing on 29 November 1995 at the same time as an application (the annulment application) brought by the respondent for the annulment of her bankruptcy.
On 1 December 1995 I dismissed the annulment application, but as I felt that there had not been adequate opportunity for the respondent to address the stay application I directed that it be stood over until today and gave the respondent leave to file and serve written submissions in opposition to the application and the Official Trustee leave to file and serve written submissions in reply.

Both parties have taken the opportunity to file written submissions which I have had the occasion to peruse, along with the affidavit evidence filed in support of both the stay application and the annulment application. I do not propose to canvass the facts in any detail. They are set out in considerable detail in the affidavits.

The respondent's bankruptcy arose upon a sequestration order being made against her estate on 29 September 1992. The act of bankruptcy on which the sequestration order was founded was the failure of the respondent to comply with a bankruptcy notice requiring the payment or other settlement in accordance with the bankruptcy notice of a judgment obtained by the petitioning creditor against the respondent in the Magistrates' Court on 18 December 1991.

Since the date of judgment there have been 10 applications made to the Magistrates' Court pursuant to s 110 of the Magistrates' Court Act for the rehearing of that proceeding. For a variety of reasons each of those applications has failed. On a number of occasions the applicant for rehearing, who in some cases was the respondent and in other her husband who is jointly liable on the same judgment, failed to attend. On other occasions there was an appearance in support of the application. Nevertheless, none of those applications has succeeded.

On four occasions the Magistrates' Court has made orders restraining the respondent from making any further application pursuant to s 110 and indeed the record shows that on some occasions a new application has been filed on the day after a previous application had been dismissed.

The respondent has made three applications for annulment of the bankruptcy. Two of such applications have been heard on their merits and dismissed; the other was not pursued by the respondent apparently on the ground that she was not then ready to proceed.

After considering the affidavit evidence filed on both sides and the written submissions made pursuant to my direction of 1 December 1995 I have reached the firm conclusion that the respondent by her conduct has displayed all of the indicia of a vexatious litigant. Upon dismissing her first annulment application on 24 March 1993 Gray J said:

It is clear to me from the evidence that there is nothing new being agitated today. All of the issues that have come to the surface have come to the surface previously.

This comment was equally applicable to the annulment application which I dismissed on 1 December 1995. No reason has been shown in any of the proceedings in this Court why the Court should go behind the judgment on which the bankruptcy notice was based. In those circumstances I am of the opinion that it would be vexatious and oppressive if the respondent were permitted to continue to approach this Court for the purpose of seeking annulment of the bankruptcy so long as the Magistrates' Court judgment subsists.

In these circumstances I propose to order that unless and until the judgment of 18 December 1991 against her in the Magistrates' Court is set aside, Gwendoline Mary Clark Larkin be restrained from making any further application to this Court to annul the bankruptcy resulting from the sequestration order made against her estate on 29 September 1992. The respondent must pay the costs of the application.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney

Associate:
Dated: 15 December 1995

Heard: 29 November 1995

Place: Melbourne

Judgment: 15 December 1995

Appearances:

Mr M. O'Brien (instructed by Australian Government Solicitor) appeared for the Official Trustee in Bankruptcy.

The respondent appeared in person.

The Official Trustee in Bankruptcy applied for an order annulling a deed made by Gwendoline Mary Clark, an insolvent debtor, to her daughter, and for a stay of all proceedings in relation to the deed. The matter was heard in the Supreme Court of New South Wales. The Official Trustee sought to have a transfer of land made by the bankrupt to her daughter declared void and to halt all actions regarding the transfer. The court had to decide whether the deed was a disposition of property made by the bankrupt with the intent to defraud creditors and whether the Official Trustee was entitled to a stay of all proceedings related to the deed.

The court examined the circumstances surrounding the transfer of the land and whether it was made with the intent to defraud creditors. The Official Trustee argued that the transfer was a fraudulent conveyance designed to avoid the bankrupt's obligations. The court considered the timing of the transfer in relation to the bankruptcy and the lack of consideration received by the bankrupt. The court also assessed the bankrupt's state of mind and whether there was an intention to prefer one creditor over another or to delay, hinder, or defraud creditors. Ultimately, the court concluded that the transfer was indeed a fraudulent disposition and granted the Official Trustee's application for annulment and a stay of proceedings.

The Supreme Court found that the deed made by Gwendoline Mary Clark to her daughter was a disposition of property with the intent to defraud creditors. The court accepted that the transfer was made without consideration and shortly before the bankruptcy, indicating a fraudulent intent. Consequently, the court annulled the deed and ordered a stay of all proceedings related to it. This decision ensures that the property in question can be recovered for the benefit of the bankrupt's creditors.

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