Wily v O'Brien

[2006] FMCA 941

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILY v O'BRIEN [2006] FMCA 941

BANKRUPTCY – Where applicant seeks substantive relief under s.120 of the Bankruptcy Act 1966 (Cth) – interlocutory injunction – requirements for Mareva-type order to be made against a party to an action – where applicant seeks liberty to impose a caveat on the title of property of the respondent.

Bankruptcy Act 1966, ss.30, 120, 139ZQ, 139ZR

Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Donnelly v Porteous [2001] FCA 345
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No3] (1998) 72 ALJR 873
Clout v Anscor Pty Ltd [2000] FCA 727
Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49
Pearce v Waterhouse [1986] VR 603

Applicant: ANDREW HUGH JENNER WILY

Respondent: CHRISTINE MAY O'BRIEN

File Number: SYG1364 of 2006

Judgment of: Barnes FM

Hearing date: 27 June 2006

Delivered at: Sydney

Delivered on: 4 July 2006

REPRESENTATION

Solicitors for the Applicant: Bizannes & Associates

Solicitors for the Respondent: Bowles Lawyers

ORDERS

1. The application for interim orders is dismissed.  

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1364 of 2006

ANDREW HUGH JENNER WILY

Applicant

And

CHRISTINE MAY O'BRIEN (FORMERLY KEYES)

Respondent

REASONS FOR JUDGMENT

1. On 8 October 2004 Anthony Joseph Twomey was made bankrupt upon the acceptance of his debtor’s petition.  Andrew Hugh Jenner Wily, the applicant in these proceedings, was appointed as trustee of his bankrupt estate. 

2. On 11 May 2006 the trustee filed an application pursuant to s.120 of the Bankruptcy Act 1966 (Cth) (the Act) seeking declarations that a transaction between the bankrupt and the respondent in these proceedings, Christine May O’Brien (formerly Keyes), dated

   
   

   28 November 2002 involving property at 7 Dublane Court, Narangba, Queensland (the “Queensland property”) was void against the applicant; that the applicant as trustee of the bankrupt estate of Mr Twomey was entitled to the proceeds of sale of the Queensland property sold 18 November 2003 and received by the respondent; and that the applicant was entitled to an equitable charge on the property jointly owned by the respondent and Dean Andrew O’Brien at

   
   

   33 Terrance Avenue, Albury, New South Wales (the “Albury property”) as well as an order that the respondent pay to the applicant the sum of $165,000 together with interest from 18 November 2003 to the date of judgment and costs. 

3. In addition the applicant sought interim orders:  either an order restraining the respondent from disposing of her interest in the Albury property pending finalisation of the suit or, in the alternative, an order that the applicant be at liberty to impose a caveat on the title of the Albury property co-owned by the respondent.  These proceedings concern the application for interim orders. 

4. Relevantly, in an affidavit sworn on 10 May 2006 the trustee contends that a transaction between Mr Twomey and Ms O’Brien relating to the Queensland property acquired by Mr Twomey on 22 November 2000 for $123,000 falls within s.120 of the Act. The Queensland property was…