Di Pietro & Ors v Official Trustee in Bankruptcy [1995] FCA 712

CATCHWORDS BANKRUPTCY - Trusts - bankrupt the registered proprietor of land - whether bankrupt's children hold a beneficial interest in the land - terms of settlement in proceedings for dissolution of marriage - bankrupt thereby acknowledged that "she will hold [the matrimonial home] or such other residence as she may later acquire on trust for the two...children of the marriage" - whether parties intended that after acquired premises would be held on trust only to the extent that they were purchased with the proceeds of sale of the matrimonial home.

STATUTE OF FRAUDS - declaration of trust respecting land must be signed by the beneficial owner, not his or her solicitor - where land is transferred to a person absolutely, but the transferee undertakes to hold it on trust for another person, the beneficiary may prove the trust by parol evidence. Bankruptcy Act 1966 (Cth), ss 58(1), 116(2)(a) Conveyancing Act 1919 (NSW), s 23C (1)(b). Tierney v Wood (1854) 19 Beav 330; 52 ER 377. Ryder v Taylor (1935) 36 SR(NSW) 31. Rochefoucauld v Boustead [1897] 1 Ch 196. Secretary, Department of Social Security v James (1990) 95 ALR 615. Last v Rosenfeld [1972] 2 NSWLR 923. Bloch v Bloch (1981) 55 ALJR 701. Walker v Corboy (1990) 19 NSWLR 382. Re Australian Elizabethan Theatre Trust; Lord v Commonwealth Bank of Australia (1991) 30 FCR 491. Kauter v Hilton (1953) 90 CLR 86 DI PIETRO & ORS v OFFICIAL TRUSTEE IN BANKRUPTCY NG 908 of 1994 Jenkinson, Tamberlin, Sackville JJ. Sydney 7 September, 1995

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 908 of 1994 GENERAL DIVISION ) ON APPEAL from a single judge of the Federal Court of Australia

BETWEEN: ELIO DI PIETRO First Appellant AND: KIM BONNIE DONALDSON Second Appellant AND: KEITH CONNOR DONALDSON Third Appellant AND: OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE BANKRUPT ESTATE OF PATRICIA WILLIAMS Respondent CORAM: JENKINSON, TAMBERLIN, SACKVILLE JJ. PLACE: SYDNEY DATE: 7 SEPTEMBER, 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed, with costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.