Federal Court of Australia
Federal Court of Australia
El-Debel v Micheletto (Trustee) [2021] FCAFC 117 Appeal from: Micheletto (Trustee), in the matter of the El-Debel (Bankrupt) v El-Debel [2020] FCA 1031
File number: NSD 1038 of 2020 NSD 1029 of 2020
Judgment of: MARKOVIC, DERRINGTON AND COLVIN JJ
Date of judgment: 30 June 2021
Catchwords: BANKRUPTCY AND INSOLVENCY - appeals from decision finding whole or part of interests in properties held on resulting trust for bankrupt - where properties registered in names of parties associated with bankrupt - whether bankrupt provided all or part of purchase price for properties - whether presumption of resulting trust rebutted by evidence of intention of bankrupt to contrary - whether reasoning of primary judge rested upon finding of express oral trust not advanced in hearing - whether interest in property formed part of bankrupt estate of bankrupt's earlier bankruptcy - whether primary judge erred in using content of file note of solicitor as admission by bankrupt's mother of a trust - whether primary judge erred in finding payments of purchase price by companies associated with bankrupt were contributions by bankrupt - whether primary judge reasoned by process of impermissible speculation and conjecture - whether principle in Jones v Dunkel should not be applied where witness subjected to compulsory examination - appeals allowed in part
Legislation: Bankruptcy Act 1966 (Cth) s 31 Conveyancing Act 1919 (NSW) s 23C
Cases cited: Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301 Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239; (2008) 39 WAR 1 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 Chairman, National Crime Authority v Flack (1998) 86 FCR 17 Donnelly v Edelsten (1994) 49 FCR 384 Fabre v Arenales (1992) 27 NSWLR 437 Fidock v Legal Profession Complaints Committee [2013] WASCA 108 G v H (1994) 181 CLR 387 Jones v Dunkel (1959) 101 CLR 298 Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 Luxton v Vines (1952) 85 CLR 352 Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163 Payne v Parker [1976] 1 NSWLR 191 RPS v R [2000] HCA 3; (2000) 199 CLR 620 Seltsam Pty Ltd v McGuiness [2000] NSWSCA 29; (2000) 49 NSWLR 262
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