Tyler v Thomas [2006] FCAFC 6

FEDERAL COURT OF AUSTRALIA

Tyler v Thomas [2006] FCAFC 6 BANKRUPTCY – voidable transfers of property interests where consideration given is less than market value – whether sale of property by bankrupt to his nephew was a sale under market value – whether bankrupt's interest was a bare legal title of no market value. BANKRUPTCY – relationship between s 30 and s 120 of the Bankruptcy Act 1966 (Cth) – whether s 30 authorises an order that a transfer is not void against the trustee if a payment is made of the difference between the market value of the property and the consideration in fact given for the transfer. PRACTICE AND PROCEDURE – appointment of court expert – whether the Federal Magistrate erred in appointing a court expert – discussion of circumstances in which the court's discretionary power to appoint a court expert should be exercised. PRACTICE AND PROCEDURE – assessment of valuation of land – whether Federal Magistrate arrogated to himself the role of an expert valuer and brought his own opinions to bear on the question of valuation.

Bankruptcy Act 1966 (Cth)ss 30, 120, 121 Evidence Act 1995 (Cth)ss 69, 79

Federal Court Rules O 34 Federal Magistrates Court Rules rr 15.09, 15.10, 15.11 and 15.12 Abbey National Mortgages plc v Key Surveyors Nationwide Ltd [1996] 3 All ER 184considered Aktiebolaget Hassle v Alphapharm Pty Ltd (2002) 212 CLR 411 applied Anscor Pty Limited v Clout (2004) 135 FCR 469referred to Arcus Shopfitters Pty Ltd v Western Australian Planning Commission (2002) 125 LGERA 180 cited Australian Securities and Investments Commission v Rich (2005) 218 ALR 764 referred to Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541 cited Britten v State of Western Australia [2001] FCA 1256considered Federal Commissioner of Taxation v St Helens Farm (A.C.T.) Pty Ltd (1981) 146 CLR 336 referred to Fina Research SA v Halliburton Energy Services Inc (2003) 59 IPR 91 applied First Netcom Pty Ltd v Telstra Corporation Ltd (2000) 101 FCR 77considered Gale v New South Wales Minister for Land & Water Conservation (2001) 6(4) AILR 66 considered GSA Industries Pty Limited v NT Gas Limited (1990) 24 NSWLR 710 referred to In Re L (An Infant) [1967] 3 WLR 1149referred to In Re Saxton Dec'd [1962] 1 WLR 968 referred to Jones v National Coal Board [1957] 2 QB 55referred to Karenlee Nominees Pty Ltd v Gollin & Co Ltd [1983] 1 VR 657 referred to Lovell v Lovell (1950) 81 CLR 513 cited Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 referred to Minnesota Mining & Manufacturing Company v Beiersdorf (Australia) Limited (1980) 144 CLR 253 cited Newark Pty Ltd v Civil & Civic Pty Ltd (1987) 75 ALR 350 considered Official Trustee in Bankruptcy v Lopatinsky (2003) 129 FCR 234referred to Official Trustee in Bankruptcy v Mateo (2003) 127 FCR 217distinguished Players Pty Ltd v Corporation of The City of Adelaide [2001] SASC 369referred to Re Bilen; Ex parte Sistrom [1985] FCA 141 cited Re S (infants) [1967] 1 All ER 202 referred to Schmierer v Horan [2004] FMCA 16 referred to Spencer v The Commonwealth (1907) 5 CLR 418cited Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 referred to The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146cited Thomas v Tyler [2004] FMCA 864 referred to Trade Practices Commission v Arnotts Limited (1989) 21 FCR 318considered Watson v Watson (1968) 70 SR (NSW) 203 cited