Baker, J.A & Ors v Official Trustee in Bankruptcy [1995] FCA 565

CATCHWORDS

APPEALS - whether new point could be taken on appeal - question of fact involving credibility and "estimate of the man". BANKRUPTCY - declaration that trusts were shams and property belonged to the bankrupt - principles - circumstances in which sham could be inferred - evidence of ownership of works of art by bankrupt - whether moneys belonging to others could be traced into property - principles of tracing - whether company holding property for bankrupt could set up a jus tertii - form of relief available - requirement that property to be traced can be identified at every stage of its journey - fraudulent conveyance - in absence of direct assignment, ability of s. 121 to get at beneficial interest in property debtor caused to be received - title of recipient prior to intervention of Official Trustee - right of recipient subject only to rights of creditors - absence of any personal liability against a recipient who has disposed of the property by sale, or by receipt of payment in the case of assignment of a debt - requirement in such a case that Official Trustee be able to trace the proceeds. TRUSTS - constitution - necessity of a real intention to create - transfer of property to a trust - Nemo dat qui non habet - necessity of a real intention to subject property to the trust - circumstances where holding of property in trusts was a sham. Bankruptcy Act 1966, s. 121 Jones v Hyde (1989) 63 ALJR 349 Abalos v Australian Postal Commission (1990) 171 CLR 167 Devries v Australian National Railways Commission (1993) 177 CLR 472 Daniels v Burfield (1994) 125 ALR 33 Westpac Banking Corporation v Spice (1990) 12 ATPR 51,386 Donnelly v Edelsten (1994) 49 FCR 384 S.S. Hontestroom v S.S. Sagaporack [1927] AC 37 The Commissioner of Stamp Duties (Queensland) v Jolliffe (1920) 28 CLR 178 Joyce v Ashfield Municipal Council (1967) 14 LGRA 133 Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 Snook v London and West Riding Investments Ltd [1967] 2 QB 786 Re State Public Services Federation; Ex parte Attorney-General for the State of Western Australia (1993) 178 CLR 249 Dalco v Federal Commissioner of Taxation (1988) 82 ALR 669 Re La Rosa; Ex parte Norgard v Rocom Pty Ltd (1990) 21 FCR 270 Norgard as Trustee in Bankruptcy of the Estate of La Rosa v Rocom Pty Limited 16 August 1990, unreported, Northrop, Davies and Lee JJ. Hancock v Federal Commissioner of Taxation (1961) 108 CLR 258 In re Watson. Ex parte Official Receiver in Bankruptcy (1890) 25 QBD 27 Coulton v Holcombe (1986) 162 CLR 1 Biddle v Bond (1865) 6 B & S 225; 122 ER 1,179 Betteley v Reed (1843) 4 QB 511; 114 ER 991 Shields v Jeffries [1953] NZLR 666 Remnant v Savoy Estate Ltd [1949] 1 Ch 622 Bishopsgate Investment Management Ltd (in Liquidation) v Homan [1995] Ch 211 Official Trustee in Bankruptcy v Mitchell (1992) 38 FCR 364 PT Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515 Williams v Lloyd (1934) 50 CLR 341 Higgins v The York Buildings Company [1740] 2 Atk. 107; 26 ER 467 In re Maddever. Three Towns Banking Company v Maddever [1884] 27 Ch D 523 Harrods, Limited v Stanton [1923] 1 KB 516 Brady v Stapleton (1952) 88 CLR 322 Law Debenture Trust Corporation v Ural Caspian Oil Corporation Ltd [1995] Ch 152 Ideal Bedding Company, Limited v Holland [1907] 2 Ch 157 Barton v Official Receiver (1984) 4 FCR 380 JAMES ANDREW BAKER & ORS v OFFICIAL TRUSTEE IN BANKRUPTCY QG 102 of 1994 CORAM: Burchett, Ryan and Carr JJ. PLACE OF HEARING: Brisbane DATE: 3 August 1995