~~.NKRUPTCY - joint tenancy of Torrens title land - whether the bankruptcy of a joint tenant severs the joint tenancy - interest of trustee in bankruptcy caveated but not registered - registration by survivor of the joint tenancy - property vesting in the trustee in bankruptcy in equity but not in law by virtue of s.58(2) of the Bankru~tcv Act - whether a trust created - whether the trust affected by indefeasibility of title provisions - whether a breach of fiduciary duty - whether the trustee in bankruptcy waived or abandoned his interest by failing to register and allowing his caveat to lapse.
Sydney
DAVID WILLIAM SISTROM v. VERA URH
No ACT G 44 of 1991
Davies, Ryan & von Doussa 33. 3 March 1992
IN THE FEDERAL COURT OF AUSTRALIA
)
1
AUSTRALIAN CAPITAL TERRITORY
)
1
DISTRICT REGISTRY
)
NO G 44 of 1991
)
GENERAL DIVISION
)
BETWEEN:
DAVID WILLIAM SISTROM Appellant
AND :
VERA URH
Respondent
M:
Davies, Ryan & von DOuSSa JJ.
Date :
3 March 1992
Place:
Sydney
MINUTES OF ORDER
THE COURT DECLARES THAT:
1. The Respondent holds her ~nterest in the property described in Crown Lease Register Book Volume 224 Folio 93 (ACT Land Titles Office) being Block 14 Section 96 Div~sion of A~nslie Ln the
- .
Australian Capital Territory in trust for the Appellant and herself as tenants in common.
THE COURT ORDERS THAT:
The appeal be allowed.
The orders of the trial judge made 19 July 1991 in this matter be set as~de.
3.
The matter be remitted to the trial ~ u d g e
to make all necessary
ancillary and consequent~al
orders.
4.
The Respondent pay the Appellant's costs of the hear~ng
before
the trial judge and of this appeal.
NOTE :
Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.
IN THE FEDERAL COURT OF AUSTRALIA
) )
AUSTRALIAN CAPITAL TERRITORY
1
1
DISTRICT REGISTRY
) No G 44 of 1991
1
GENERAL DIVISION
1
BETWEEN:
DAVID WILLIAM SISTROM
Appellant
AND :
VERA URH
Respondent
Coram:
Davies, Ryan & von Doussa JJ.
Date :
3 March 1992
Place: Sydney
REASONS FOR JUDGMENT
The Court:
- .
This is an appeal from an order of a judge of this Court dismissing an application by David William Sistrom ("the Trustee") who is the trustee in bankruptcy of the estate
on 27 March 1987, founded on a creditor's petition presented
of Ivan Urh ("the Bankrupt"). A sequestration order was made against the Bankrupt
by the Deputy Commissioner of Taxation. The Bankrupt died on 18 September 1989, at which date he not been discharged from his bankruptcy. Vera Urh is the Bankrupt's widow. The Bankrupt and Mrs Urh were, at the date of the sequestration order, the registered proprietors as joint tenants of a Crown Lease of land in Ainslie in the Australian Capital Territory, under…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Sistrom v Urh [1992] FCA 1054
Case
[1992] FCA 1054
Decision Date
CaseChat Overview and Summary
The appeal in Sistrom v Urh was heard by the Federal Court of Australia, with Davies, Ryan, and von Doussa JJ presiding. The case involved a dispute over the interest of David William Sistrom, the trustee in bankruptcy of Ivan Urh, in a Crown Lease of land in Ainslie, Australian Capital Territory. The property was held as joint tenants by the Bankrupt and his widow, Vera Urh. Upon the Bankrupt's bankruptcy, the Trustee lodged a caveat but did not register his interest, leading to the registration of the property in the sole name of Mrs Urh following the Bankrupt's death. The Trustee sought a declaration of his beneficial interest in the property, which was opposed by Mrs Urh on the grounds that she did not hold the property as trustee, that the certificate of title was conclusive except in cases of fraud, and that the Trustee had waived his interest by failing to act promptly.
The Court disagreed with the trial judge's findings. It held that the bankruptcy of a joint tenant severs the joint tenancy in equity, imposing a trust on the surviving joint tenant to hold the property for the Trustee and herself as tenants in common. The Court further held that the indefeasibility provisions of the Torrens Title statutes do not preclude the enforcement of an equitable interest. Mrs Urh, as a trustee under a fiduciary duty, could not rely on the Act for her own benefit. Finally, the Court found that the Trustee had not waived or abandoned his equitable interest through mere delay. The appeal was allowed, the orders of the trial judge were set aside, and the matter was remitted to the trial judge to make necessary ancillary and consequential orders. Mrs Urh was ordered to pay the costs of the hearing and the appeal.