Boensch as trustee of the Boensch Trust v Pascoe [2018] FCAFC 234

FEDERAL COURT OF AUSTRALIA

Boensch as trustee of the Boensch Trust v Pascoe [2018] FCAFC 234 Appeal from: Boensch as trustee of the Boensch Trust v Pascoe [2015] NSWSC 1882 Boensch as trustee of the Boensch Trust (No 2) v Pascoe [2016] NSWSC 343

File number: NSD 1448 of 2016

Judges: BESANKO, MCKERRACHER AND GLEESON JJ

Date of judgment: 20 December 2018

Catchwords: PRACTICE AND PROCEDURE – appeal from orders made by a judge of the Supreme Court of New South Wales – appellant granted extension of time within which to appeal by a single judge of this Court limited to nine grounds TRUSTS AND TRUSTEES – whether the primary judge erred in holding that the respondent trustee in bankruptcy had a caveatable interest in real property held by the bankrupt on trust by operation of s 58(1)(a) of the Bankruptcy Act 1966 (Cth) – whether the primary judge erred in holding that the existence of a caveatable interest was, in the circumstances, sufficient to defeat the appellant's claim and it was not necessary to consider whether the respondent had an honest belief based on reasonable grounds that he had a caveatable interest in the property – consideration of the law as to reasonable cause – where the appellant has the onus of establishing the absence of reasonable cause TRUSTS AND TRUSTEES – whether the primary judge erred in holding that even if the respondent did not have a caveatable interest in the property, the appellant's claim nevertheless fails if it is found that the respondent had an honest belief based on reasonable grounds that he had a caveatable interest in the property – whether the primary judge erred in holding that an honest belief was part of the test and the test was not wholly objective – whether the primary judge erred in finding that the respondent had an honest belief based on reasonable grounds that he had a caveatable interest in the property TRUSTS AND TRUSTEES – whether the primary judge erred in not finding that the appellant had failed to prove that the respondent did not have a right of indemnity by reason of the bankrupt's expenditure of funds in the performance of the trust and, therefore, a caveatable interest