Jones v Arcuri [1999] FCA 46

FEDERAL COURT OF AUSTRALIA

Jones v Arcuri [1999] FCA 46

MICHAEL GREGORY JONES, TRUSTEE OF THE BANKRUPT ESTATE OF SALVATORE ARCURI v NICODEME VINCENZO ARCURI AND MARIA TERESA ARCURI

QG 7446 OF 1997

HELY J

5 FEBRUARY 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY QG 7446 OF 1997

BETWEEN: MICHAEL GREGORY JONES, TRUSTEE OF THE BANKRUPT ESTATE OF SALVATORE ARCURI

Applicant

AND: NICODEME VINCENZO ARCURI AND MARIA TERESA ARCURI

Respondent

JUDGE: HELY J

DATE OF ORDER: 5 FEBRUARY 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The mortgage dated 30 June 1995 granted by the bankrupt in favour of the respondents over real property described as Lot 7 in Strata Plan 35785 being the land situated at Unit 7, 377-379 Mowbray Road, Chatswood, NSW, is void against the applicants by the operation of s 122 of the Bankruptcy Act 1966. 2. The respondents pay the applicant's costs of these proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY QG 7446 OF 1997

BETWEEN: MICHAEL GREGORY JONES, TRUSTEE OF THE BANKRUPT ESTATE OF SALVATORE ARCURI

Applicant

AND: NICODEME VINCENZO ARCURI AND MARIA TERESA ARCURI

Respondent

JUDGE: HELY J

DATE: 5 FEBRUARY 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 14 September 1994 the respondents paid the sum of $176,755.78 to Asset Backed Securities Pty Ltd to discharge a debt owing by the bankrupt. On 14 September 1994 an agreement for loan was entered into between the respondents as lenders, and the bankrupt as borrower, for the making of an advance of $178,000 to the borrower, repayable in 12 months time. 2 On 30 June 1995 a further agreement for loan was entered into between the respondents, as lenders, and the bankrupt as borrower, for the making of an advance of $190,000 to the borrower, repayable in 12 months time. There was no fresh advance of $190,000. Although the original loan agreement did not, or did not clearly, require the payment of interest except on default, the parties appear to have dealt with each other on the basis that interest was payable under that arrangement. The sum of $190,000 represented the original advance of $178,000 and capitalised interest. 3 On 30 June 1995 the bankrupt, as mortgagor, executed a form of mortgage over a home unit in Mowbray Road, Chatswood to secure repayment to the respondents, as mortgagee, of the sum of $190,000. The mortgage was not registered, but on 21 August 1995 a caveat was lodged by the respondents claiming an estate in interest in the home unit as equitable mortgagee pursuant to a mortgage dated 30 June 1995 for the sum of $190,000. 4 The application in the present proceedings seeks a declaration that the mortgage is void against the applicants by operation of s 122 of the Bankruptcy Act 1966.