Re Ebner, Maxwell William; The Official Trustee In Bankruptcy v Ebner, Ingrid [1998] FCA 751

FEDERAL COURT OF AUSTRALIA BANKRUPTCY - application by Official Trustee in Bankruptcy for orders pursuant to s 120 and s 121 of the Bankruptcy Act 1966 (Cth) for orders declaring void and setting aside the transfer of the Bankrupt's half interest in land to his wife ("the respondent") - burden of proof - whether debt owed by Bankrupt to wife or development Company - whether verbal loan agreements made that money advanced or paid by the respondent were for or on behalf of the Bankrupt - whether transfer for "valuable consideration" - determination of fair market value of property at date of transfer - whether respondent acted in "good faith" - meaning of "good faith" - whether respondent knew or suspected that Bankrupt unable to pay his debts when they fell due - whether Bankrupt intended to defraud his creditors.

Bankruptcy Act 1966 (Cth): s 120, s 121

PT Garuda Indonesia Limited v Grellman (1992) 35 FCR 515 - applied Wansley v Edwards (1996) 68 FCR 555 - applied Cannane (DM) v J Cannane Pty Ltd (In Liq) (1998) 153 ALR 163 - followed Re Brunner; Ex parte Official Trustee in Bankruptcy (1984) 2 FCR 6 - distinguished RE: MAXWELL WILLIAM EBNER; THE OFFICIAL TRUSTEE IN BANKRUPTCY v INGRID EBNER VB 2082 of 1994 GOLDBERG J MELBOURNE 30 JUNE 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VB 2082 of 1994

BETWEEN: RE: MAXWELL WILLIAM EBNER (A BANKRUPT)

EX PARTE: THE OFFICIAL TRUSTEE IN BANKRUPTCY

AND: Applicant

INGRID EBNER

Respondent

JUDGE: GOLDBERG J

DATE OF ORDER: 30 JUNE 1998

WHERE MADE: MELBOURNE

THE COURT DEclaReS THAT: 1. The transfer registered in the Office of the Registrar of Titles on or about 18 April 1991 in dealing No R303234Q of the land described in Certificate of Title Volume 9913 Folio 969, being one equal undivided half part or share of all that land being Lot 4 on Plan of Subdivision No 87037 being the land situate at and known as 6 Watts Parade, Mount Eliza in the State of Victoria, by Maxwell William Ebner to the respondent, Ingrid Ebner, is void as against the applicant pursuant to the provisions of s 120 and s 121 of the Bankruptcy Act 1966 (Cth). 2. The applicant is entitled to be registered as the proprietor of an estate in fee simple in the land described in Certificate of Title Volume 9913 Folio 969. THE COURT ORDERS THAT: 3. The respondent execute a transfer of the land described in Certificate of Title Volume 9913 Folio 969 to the applicant within fourteen days after the date upon which this order is served upon her, failing which a transfer of the land may be signed by the District Registrar of this Court for and on behalf of the respondent, and such transfer signed by the District Registrar of this Court shall be deemed to be duly executed by the respondent. 4. The respondent deliver up to the applicant within fourteen days after the date upon which this order is served upon her the duplicate Certificate of Title Volume 9913 Folio 969. 5. Liberty be reserved to both parties to apply for such further or other orders as they may be advised in relation to the carrying into effect and implementation of these declarations and orders. 6. The respondent pay the applicant's costs of and incidental to the application including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules