Federal Court of Australia
Federal Court of Australia
McMillan v Warner (Trustee) [2022] FCAFC 20 Appeal from: Warner (Trustee), in the matter of McMillan (Bankrupt) v McMillan [2020] FCA 1759
File number(s): NSD 191 of 2021
Judgment of: LOGAN, FARRELL AND HALLEY JJ
Date of judgment: 23 February 2022
Catchwords: BANKRUPTCY – appeal – where property was transferred to the appellant for $1 and the transferor subsequently became bankrupt – where 16 years had elapsed between the transfer and bankruptcy – where there was no temporal nexus between the creditors at the time of the transfer and the subsequent bankruptcy –where the primary judge rejected the transferor's evidence as to his purpose in making the transfer – whether the transferor's main purpose was to prevent the property becoming divisible among creditors or to hinder or delay the process of making that property available for division among creditors in contravention of s 121(1)(b) of the Bankruptcy Act 1966 (Cth) – whether the primary judge erred in concluding that a reasonable and definite inference was available that the transferor's main purpose was to defeat creditors – whether the primary judge made findings that went outside the pleaded case – whether the primary judge erred in making an adverse credibility finding against the transferor – whether the transferor had embarked upon a risky venture –– appeal allowed EVIDENCE – whether the primary judge erred in drawing Jones v Dunkel inferences
Legislation: Bankruptcy Act 1966 (Cth) ss 120, 121 Evidence Act 1995 (Cth) s 140
Cases cited: Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47 Brunskill and Another v Sovereign Marine & General Insurance Co Ltd and Others (1985) 62 ALR 53; [1985] HCA 61 Cannane v J Cannane Pty Ltd (in Liq) (1998) 192 CLR 557; [1998] HCA 26 Chong & Anor v CC Containers Pty Ltd & Ors (2015) 49 VR 402; [2015] VSCA 137 Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 Ebner v Official Trustee in Bankruptcy (1999) 91 FCR 353; [1999] FCA 110 Ex parte Russell; In re Butterworth (1882) 19 Ch D 588 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Jadwan Pty Ltd v Rae & Partners (A Firm) (2020) 278 FCR 1; [2020] FCAFC 62 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Jones v Hyde (1989) 85 ALR 23; [1989] HCA 20 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Mackay v Douglas (1872) LR 14 Eq 106 Micheletto (Trustee), in the matter of El-Debel (Bankrupt) v El-Debel [2020] FCA 1031 Official Trustee v Alvaro (1996) 66 FCR 372 Owners of SS Hontestroom v Owners of SS Sagaporack [1927] AC 37 at 47 Prentice v Cummins (2002) 124 FCR 67; [2002] FCA 1503 The Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278; [2006] HCA 6 Trkulja v Markovic [2015] VSCA 298 Warner (Trustee), in the matter of McMillan (Bankrupt) v McMillan [2020] FCA 1759 Warren v Coombes (1979) 142 CLR 531 Williams v Lloyd (1934) 50 CLR 341; [1934] HCA 1
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