Ashton v Prentice, in the matter of Jury [1999] FCA 671

FEDERAL COURT OF AUSTRALIA

Ashton v Prentice; in the matter of Jury [1999] FCA 671

BANKRUPTCY – disposition of property – transfer of real estate mortgaged by transferee and proceeds of mortgage paid to transferor on account of price – whether transfer void as against trustee in bankruptcy – interpretation of subs 121(2) and (3) of Bankruptcy Act – whether burden of persuasion under s 121(4) on transferee – whether consideration within meaning of s 121(5) passed from transferee – lease back to transferor and relatives – whether lease survives avoidance of transfer – whether vested in trustee as property of the bankrupt requiring disclaimer – whether trustee estopped from denying continuing validity of lease. COURTS AND JUDGES – bias – judge a beneficiary of discretionary trust holding shares in bank which is a creditor of bankrupt – judge a customer of same bank – whether direct pecuniary interest or reasonable apprehension of bias – party proposing to call a witness who is friend of judge – witness not actually called – whether that party can assert reasonable apprehension of bias – application to call medical witness to prove principal witness suffering from cognitive dysfunction – whether trial judge should have received that evidence to explain apparent unreliability of the witness. Bankruptcy Act 1966 (Cth) s 121, 133 Re Ebner; Ebner v Official Trustee in Bankruptcy (1999) 161 ALR 557, followed John v FCT (1989) 166 CLR 417, cited Clenae Pty Limited v Australia & New Zealand Banking Group Limited [1999] VSCA 35 (unreported; 9 April 1999), considered R v Industrial Court [1966] Qd R 245, cited Dovade Pty Limited v Westpac Banking Corporation [1999] NSWCA 113 (unreported; 30 April 1999), considered Gascor v Ellicott [1997] 1 VR 332, considered Munro v Australia & New Zealand Banking Group Limited (unreported; 29 June 1993; FCA: Ryan J), cited Sankey v Whitlam [1977] 1 NSWLR 333, considered P.T. Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515, cited Titterton v Cooper (1882) 9 QBD 473, explained Ex parte Bolland; In re Dysart (1878) 9 Ch D 312, explained Tucker v Hernamon (1853) 4 DM&G 395: 43 ER 561, explained Shaw v Hyatt (1891) 17 VLR 612, explained