Trent & Rowley - [2014] FamCA 447

FAMILY COURT OF AUSTRALIA

TRENT & ROWLEY

[2014] FamCA 447

FAMILY LAW – BANKRUPTCY – Applicant for property alteration made bankrupt during proceedings – Trustee decides not to pursue those proceedings – Bankrupt claims the abandonment by the trustee gives him a right to pursue the matter – Bankrupt concedes any property so received will form part of the estate but such an order might reduce his time in bankruptcy – Application rejected – Consideration of past authorities permitting such a course.

Bankruptcy Act 1966 (Cth)
Family Law Act 1975 (Cth)

Bryson and Pember [2013] FamCA 43
Cummings v Claremont Petroleum NL (1996) 185 CLR 124
Doisy and Wilmot-Doisy [2009] FamCAFC 14
General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125
Kucera and Kucera [2007] FMCAfam 1187
O’Neill and O’Neill and Tayper Pty Ltd and Kayhaven Pty Ltd and Likami Properties Pty Ltd [1998] FamCA 67
Page and Page (No 2) (1982) FLC 91-241
The Marriage of Guirguis and the Official Trustee in Bankruptcy (1997) 21 Fam LR 356

APPLICANT:

Mr Trent

RESPONDENT:

Ms Rowley

FILE NUMBER:

MLC

10211

2011

DATE DELIVERED:

25 June 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

17 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Smith

SOLICITOR FOR THE APPLICANT:

Waters Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Salamanca

SOLICITOR FOR THE RESPONDENT:

Webb Korfiatis

Orders

That the application filed 15 November 2011 is summarily dismissed.
The response of the respondent filed 18 January 2012 is adjourned to 9.00am on 4 July 2014 for mention.
That the application in a case filed on 12 June 2014 by the respondent is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Trent & Rowley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10211 of 2011

Mr Trent

Applicant

And

Ms Rowley

Respondent

REASONS FOR JUDGMENT

A bankrupt’s contingent interest in a surplus in his or her estate does not alone give a right or entitlement which would allow him or her to sue to enforce proprietary rights (Cummings v Claremont Petroleum NL (1996) 185 CLR 124 at 132 per Brennan CJ, Gaudron and McHugh JJ).
A bankrupt who seeks an order under s 90SM of the Family Law Act 1975 (Cth) (“the Act”) seeking that the Court alter the interests of a former spouse is seeking, if not to enforce a proprietary right, at least seeking to obtain one.
In Bryson and Pember [2013] FamCA 43, Forrest J said that the filing of an application for alteration of property interests (pursuant to s 79 of the Act) does not of itself create, or give rise to interests in property in the applicant spouse that do not already exist. Nor does the filing of the application change any interests that already exist or the way in which…

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.

Continue reading Trent & Rowley

Details

AGLC: Trent & Rowley [2014] FamCA 447
Case: [2014] FamCA 447
Decision Date: 25 June 2014

CaseChat Overview and Summary

The applicant, Trent, sought to bring proceedings against the respondent, Rowley. The specific nature of the dispute is not detailed in the provided text, but it involved an application filed by Trent on 15 November 2011. The proceedings were heard by Cronin J.

The court was required to determine the fate of Trent's application filed in November 2011. Additionally, the court considered a response filed by Rowley on 18 January 2012, and a further application filed by Rowley on 12 June 2014.

Cronin J summarily dismissed Trent's application of 15 November 2011. The respondent's response of 18 January 2012 was adjourned for mention to a future date. The respondent's subsequent application filed on 12 June 2014 was also dismissed.

Orders

Orders of the court

That the application filed 15 November 2011 is summarily dismissed.

The response of the respondent filed 18 January 2012 is adjourned to 9.00am on 4 July 2014 for mention.

That the application in a case filed on 12 June 2014 by the respondent is otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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