Yushkova v Johnston (Trustee) in the matter of bankrupt estate of King

The appeal before the Court was brought by the appellant, Yushkova, against a decision of the Federal Circuit Court of Australia concerning the interest of the bankrupt, King, in real property jointly owned by her and the bankrupt. The appellant argued that the bankrupt had no beneficial interest in the real property, while the respondent, Johnston, the trustee of the bankrupt’s estate, asserted that the bankrupt had both a legal and beneficial interest in the property. The Court of Appeal was tasked with determining whether the primary judge erred in finding that the bankrupt had a beneficial interest in the property, and whether the rule in Browne v Dunn was contravened by the respondent in the Circuit Court proceedings.

The Court of Appeal considered whether the primary judge was correct in dismissing the appellant’s contention that the bankrupt had no beneficial interest in the property. The Court held that the primary judge's findings were supported by the evidence and that the appellant's appeal was without merit. The Court also examined the appellant's argument regarding the alleged failure of the respondent to comply with the rule in Browne v Dunn. The Court found that the primary judge's adverse credibility findings against the appellant and the bankrupt were justified, and thus dismissed the contention that the rule in Browne v Dunn had been contravened.

The appeal was dismissed, and the orders made on 15 February 2024 were vacated pursuant to the slip rule. The appellant’s application to lead further evidence and to raise related new issues of fact and law was also dismissed. The appellant was ordered to pay the respondent’s costs of and incidental to the appeal and the further evidence application, including reserved costs, to be fixed in a lump sum by a registrar if not agreed. These costs were to be fixed in accordance with Rule 39.32 of the Federal Court Rules 2011.