Terry, Maureen v Official Receiver

[1998] FCA 1341

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG7219 OF 1998

BETWEEN:	MAUREEN TERRY APPLICANT
AND:	OFFICIAL RECEIVER RESPONDENT
JUDGE:		COOPER J
DATE OF ORDER:		18 SEPTEMBER 1998
WHERE MADE:		BRISBANE

THE COURT ORDERS THAT:

1. The respondent pay the applicant’s costs of and incidental to the application including reserved costs, if any, to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG7219 OF 1998

BETWEEN:	MAUREEN TERRY APPLICANT
AND:	OFFICIAL RECEIVER RESPONDENT

JUDGE:	COOPER J
DATE:	18 SEPTEMBER 1998
PLACE:	BRISBANE

REASONS FOR JUDGMENT

This is an application for costs by the applicant Maureen Terry consequent upon the setting aside, by consent, of a notice issued pursuant to s 139ZQ of the Bankruptcy Act (Cth) 1966 (“the Act”).  The notice served called upon the applicant to pay a substantial sum of money in respect of an interest in jointly-owned property being transferred to her by her husband, the bankrupt, in circumstances in which it is said or it was alleged that the transfer was to avoid the consequences of the bankruptcy and so as to deprive the bankrupt’s estate of the interest in the property.

The affidavit material in support of the application includes material from Mrs Terry setting out the circumstances surrounding the transfer.  Briefly put, they are that the property was acquired by her from her own funds, the bankrupt providing none of the purchase price such that it was treated as between the parties and, in equity, has been property held jointly by her as to her own interest and by the bankrupt on a resulting trust in favour of her, she being the sole provider of the purchaser funds and improvement funds.  The solicitors for the applicant wrote to the Trustee outlining certain formal defects in respect of the notice and challenging the basis upon which it was asserted in the notice relied upon by the Trustee as entitling him to set aside the transaction as void as against him.

The material at that stage did not particularise the basis upon which Mrs Terry contended that she was not obliged to make any payment as called for in the notice.  The solicitors for the Trustee, by letter of 4 June 1998 responded to the applicant’s solicitors’ facsimile of 1 June 1998 indicating that nothing had persuaded the writer that there were any substantive grounds to the objection to the notice.  However, it concluded:

“Points 5 and 6 are noted, but unless you provide me with particulars by 5 pm on 5 June I shall be proceeding with my request to the Deputy Official Receiver to amend the notice issued pursuant to section 139QZ”.

The notice required payment be made to Mr Fletcher the Trustee, by 17 June 1998, and continued:

“Or if you satisfy William John Fletcher that such is not possible, you are required to have made by that date arrangements which…