Sui Mei Huen v Official Receiver for and on behalf of the Official Trustee in Bankruptcy [2008] FCAFC 117

FEDERAL COURT OF AUSTRALIA

Sui Mei Huen v Official Receiver for and on behalf of the Official Trustee in Bankruptcy [2008] FCAFC 117 TRUSTS – Constructive trust – matrimonial home acquired by husband and wife using proceeds from sale of former matrimonial home – mortgage jointly granted to bank to secure repayment of balance of price of second home – husband leaving second home shortly after acquisition after "matrimonial difficulties" existing for some time – wife continuing to live in second home with three children and assuming sole responsibility for payment of mortgage instalments and other outgoings – effect of "agreement" by husband at time of leaving that 100% of second home belonged to wife – husband becoming bankrupt about two years after acquisition of second home – effect of application to Family Court for consent orders for transfer to wife of whole of husband's interest in second home – matters tending to rebut presumption that equitable estate in second home held after husband's bankruptcy as tenants in common in equal shares – extent to which conduct of parties after acquisition of property can be taken into account in ascertaining intention – whether remedy other than imposition of constructive trust available to quell the controversy between the parties – whether equitable accounting an appropriate and sufficient remedy.

Bankruptcy Act 1966 (Cth) ss 30, 58, 116, 120(1) and 120(7)(b) Family Law Act 1975 (Cth) s 79 Property Law Act 1969 (WA) s 34 Meagher, Gummow & Lehane; Equity Doctrines and Remedies, 4th ed, 2002

Draper v Official Trustee in Bankruptcy (2006) 156 FCR 53 Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278 Mackowik v Kansas City St J & C B R Co 94 SW 256 Neilsen v Letch (No 2) [2006] NSWCA 254 Draper v Official Trustee in Bankruptcy (2006) 156 FCR 53 Charles Marshall Pty Ltd v Grimsey (1956) 95 CLR 353 Midland Bank PLC v Cooke [1995] 4 All ER 562 Baumgartner v Baumgartner (1988) 164 CLR 137 Parianos v Melluish (Trustee) [2003] FCA 190 Muschinski v Dodds (1985) 160 CLR 583 Green v Green [1989] 17 NSWLR 343 Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89 Stack v Dowden [2007] 2 WLR 831 Buffrey v Buffrey [2006] NSWSC 1349 Calverley v Green (1984) 155 CLR 242 Milroy v Lord (1862) 45 ER 1185 Williams v Lloyd (1933) 50 CLR 341 Walsh Bay Developments Pty Ltd v Federal Commissioner of Taxation (1995) 130 ALR 415 Brisbane City Council v Attorney General [1979] AC 411 Peldan v Anderson (2006) 227 CLR 471 Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 556 Giumelli v Giumelli (1999) 196 CLR 101 Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278 Re Francis Ex parte Official Trustee (1988) 19 FCR 149 Grant v Edwards [1986] Ch 638 Hayward v Giordani [1983] NZLR 140 CHRISTINA SIU MEI HUEN v OFFICIAL RECEIVER FOR AND ON BEHALF OF THE OFFICIAL TRUSTEE IN BANKRUPTCY WAD 70 OF 2007