FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THOMAS v TYLER (No.2) | [2005] FMCA 342 |
| BANKRUPTCY – Application under ss.120, 121 – whether sale of property by bankrupt to his nephew was a sale at an under value – whether report of court appointed valuer should be accepted – whether there should be a reconveyance of land – forms of orders. |
| Bankruptcy Act 1966 (Cth), ss.120, 121 Federal Magistrates Court Rules 2001 Land Valuation and Compensation in Australia; R O Rost and H G Land Acquisition, Douglas Brown 4th Ed The Law of Resumption and Compensation in Australia, Marcus S Jacobs The Law Affecting Valuation of Land in Australia, Alan A Hyam |
| Applicant: | GAVIN THOMAS |
| Respondent: | MICHAEL TYLER |
| File Number: | SYG1291 OF 2004 |
| Judgment of: | Raphael FM |
| Hearing dates: | 10, 14, 15 March 2005 |
| Date of Last Submission: | 15 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 29 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr P McEwen SC and Mr B Skinner |
| Solicitors for the Applicant: | Argyle Partnership |
| Counsel for the Respondent: | Mr R Marshall |
| Solicitors for the Respondent: | Purcell Insolvency Lawyers |
ORDERS
The applicant, on or before 5 April 2005, bring in draft minutes of order.
The respondent pay the applicant’s costs including the costs of the court appointed valuer for the valuation and for his attendance at court to be taxed if not agreed in accordance with the Federal Court Act and Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1291 of 2004
| GAVIN THOMAS |
Applicant
And
| MICHAEL TYLER |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings are an application filed by the Trustee of the bankrupt estate of Douglas Keith Tyler seeking a declaration from the court pursuant to s.120 or s.121 of the Bankruptcy Act 1966 (Cth) (the “Act”) that a transfer of land described in Folio Identifiers 83/752847, 49/752847, 1/409844, 48/752847, 29/752847, 32/752847 and Perpetual Leasehold 79/752847, 1961/63 Folio Identifier 94/726640 by the bankrupt to the respondent Michael Tyler on or about 10 November 2000 was void against Gavin Thomas as trustee for the bankrupt Douglas Tyler. Mr Tyler became bankrupt on the making of a sequestration order by the Federal Court on 14 February 2003. His bankruptcy commenced on 27 May 2002, a date within two years of the transfer.
The respondent defended the claim arguing that he had purchased the property following negotiations with the Commonwealth Bank which was mortgagee in possession of the farms constituting the property owned by his uncle. He maintained that the purchase price which he paid for the property, $635,000.00 was the market value of the property at the time of sale. Section 120 of the Act is in the following form:
Undervalued transactions
Transfers that are…
Continue reading Thomas v Tyler (No.2)
Sign in free to access the full text
- AGLC
- Thomas v Tyler (No.2) [2005] FMCA 342
- Case
- [2005] FMCA 342
- Decision Date
CaseChat Overview and Summary
The court found that the order for sale remained valid and enforceable. It concluded that the order had not been frustrated by intervening events and that there were no grounds for setting it aside. The court held that the order was clear and unambiguous and that there were no impediments to its enforcement. The court rejected the argument that the order had been frustrated by the applicant's delay in enforcing it. It held that the applicant's delay did not amount to a waiver of the order or a renunciation of the applicant's rights under it. The court also rejected the argument that the order should be set aside on the grounds of hardship. It held that the applicant had not demonstrated any exceptional circumstances that would warrant setting aside the order.
The court ordered that the applicant bring in draft minutes of order by a specified date and that the respondent pay the applicant's costs, including the costs of the court-appointed valuer, for the valuation and for his attendance at court. The costs were to be taxed if not agreed in accordance with the Federal Court Act and Rules. The court did not make any further orders in relation to the sale of the property.
Orders
Orders of the court
1.
The applicant, on or before 5 April 2005, bring in draft minutes of order.
2.
The respondent pay the applicant’s costs including the costs of the court appointed valuer for the valuation and for his attendance at court to be taxed if not agreed in accordance with the Federal Court Act and Rules.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.