Sheahan v Cooper

[1999] FCA 766

FEDERAL COURT OF AUSTRALIA

Sheahan v Cooper [1999] FCA 766

BANKRUPTCY – agreement to transfer share of property – whether agreement created a trust in the equitable interest in the property – transfer occurred later – whether transfer a sham under s 120 – whether interest transferred at all – whether consideration existed for the transfer – whether transfer for market value.

BANKRUPTCY – whether bankrupt was, or was about to become insolvent at the time of transfer of land.

TRUSTS – whether constructive trust could be created where trustee in bankruptcy asserted title.

TRUSTS – apportionment of interests under Baumgartner principle.

Bankruptcy Act 1966 (Cth) ss 116, 120 and 121
Bankruptcy Legislation Amendment Act 1996 Sch 1 Pt 2 Item 457

Baumgartner v Baumgartner (1987) 164 CLR 137 applied
Sharrment Pty Ltd v Official Receiver in Bankruptcy (1988) 18 FCR 449 considered
Donnelly (Trustee of Estate of Edelsten) v Edelsten (1994) 49 FCR 384 considered
Ex parte Holthausen; Re Scheibler (1874) LR 9 Ch App 722 considered
Re Bastable; Ex parte Trustee [1901] 2 KB 518 considered
Re Sharpe [1980] 1 All ER 198 considered
Muschinski v Dodds (1985) 160 CLR 583 applied
Osborn; Ex parte Trustee of the Property of Osborn (A Bankrupt) v Osborn (1990) 25 FCR 547 distinguished
Calverley v Green (1985) 155 CLR 242 considered
Ashton v Prentice (Federal Court, Hill J, unreported, 23 October 1998) considered

JOHN SHEAHAN as Trustee of the Bankrupt Estate of RICHARD JOHN COOPER v NOELENE MICHELLE COOPER

S 7017 OF 1999

MANSFIELD J

ADELAIDE
8 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 7017 OF 1999

IN THE MATTER OF THE BANKRUPT ESTATE OF
RICHARD JOHN COOPER

BETWEEN:	JOHN SHEAHAN as Trustee of the Bankrupt Estate of RICHARD JOHN COOPER Applicant
AND:	NOELENE MICHELLE COOPER Respondent
JUDGE:	MANSFIELD J
DATE OF ORDER:	4 JUNE 1999
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.Pursuant to O 52 r 14 the time from which the period runs for the institution of an appeal be fixed at 8 June 1999.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 7017 OF 1999

IN THE MATTER OF THE BANKRUPT ESTATE OF
RICHARD JOHN COOPER

BETWEEN:	JOHN SHEAHAN as Trustee of the Bankrupt Estate of RICHARD JOHN COOPER Applicant
AND:	NOELENE MICHELLE COOPER Respondent

JUDGE:	MANSFIELD J
DATE:	8 JUNE 1999
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

The claim

1. The applicant John Sheahan (“Mr Sheahan”) was appointed trustee of the bankrupt estate of Richard John Cooper (“Mr Cooper”) on 20 April 1998.

2. Mr Sheahan promptly identified the land in Certificate of Title Register Book Volume 4257 Folio 921 (“the property”) apparently as being owned by Mr Cooper and by the respondent Noelene Michelle Cooper (“Ms Cooper”).  The land was acquired by Mr Cooper and Ms Cooper on 26 February 1986, shortly before they were married in August…