Sharp v Rangott [2008] FCAFC 45

FEDERAL COURT OF AUSTRALIA

Sharp v Rangott [2008] FCAFC 45

BANKRUPTCY – property of bankrupt – transfer of property prior to bankruptcy – whether void as against trustee in bankruptcy – whether bankrupt solvent at time of transfer – bankrupt not called as a witness by either party – whether federal magistrate entitled to draw inference from failure to call bankrupt

Held: No error in drawing inference – onus on transferee to prove solvency – open to federal magistrate to find that bankrupt was available to transferee to call as a witness BANKRUPTCY – property of bankrupt – transfer of property prior to bankruptcy – whether void as against trustee in bankruptcy – whether transfer for valuable consideration – transfer expressed to be in consideration of natural love and affection – whether inconsistency in federal magistrate's reasons for judgment between finding of no consideration and finding of consideration that was of no value

Held: No inconsistency in findings – no error by federal magistrate – result the same whether no consideration or consideration of no value

COURTS AND JUDGES – trial – witness – not called by either party – power of judge to call witness of own motion – whether federal magistrate had duty to call bankrupt who had not been called by either party

Held: No duty to call bankrupt – federal magistrate entitled to take view that bankrupt available to appellant if he had chosen to call her

APPEALS – power of Full Court to receive further evidence – whether discretion should be exercised in favour of appellant

Held: Application to adduce further evidence on appeal refused – evidence available to appellant at time of trial – forensic decision made not to call evidence – evidence would not have led to a different result

Australian Constitution Ch III Bankruptcy Act 1966 (Cth) ss 5(2), 5(3), 120, 120(1)(b), 120(3), 120(5), 121 Evidence Act 1995 (Cth) s 26 Federal Court of Australia Act 1976 (Cth) s 27 Federal Court Rules O 52, r 36 Federal Magistrates Act 1999 (Cth) ss 3, 42, 81 Federal Magistrates Court Rules 2001 (Cth) r 15.04 Judiciary Act 1903 (Cth) s 78B