Sheahan v Cooper [1999] FCA 766

FEDERAL COURT OF AUSTRALIA

Sheahan v Cooper [1999] FCA 766 BANKRUPTCY – agreement to transfer share of property – whether agreement created a trust in the equitable interest in the property – transfer occurred later – whether transfer a sham under s 120 – whether interest transferred at all – whether consideration existed for the transfer – whether transfer for market value. BANKRUPTCY – whether bankrupt was, or was about to become insolvent at the time of transfer of land. TRUSTS – whether constructive trust could be created where trustee in bankruptcy asserted title. TRUSTS – apportionment of interests under Baumgartner principle. Bankruptcy Act 1966 (Cth) ss 116, 120 and 121 Bankruptcy Legislation Amendment Act 1996 Sch 1 Pt 2 Item 457 Baumgartner v Baumgartner (1987) 164 CLR 137 applied Sharrment Pty Ltd v Official Receiver in Bankruptcy (1988) 18 FCR 449 considered Donnelly (Trustee of Estate of Edelsten) v Edelsten (1994) 49 FCR 384 considered Ex parte Holthausen; Re Scheibler (1874) LR 9 Ch App 722 considered Re Bastable; Ex parte Trustee [1901] 2 KB 518 considered Re Sharpe [1980] 1 All ER 198 considered Muschinski v Dodds (1985) 160 CLR 583 applied Osborn; Ex parte Trustee of the Property of Osborn (A Bankrupt) v Osborn (1990) 25 FCR 547 distinguished Calverley v Green (1985) 155 CLR 242 considered Ashton v Prentice (Federal Court, Hill J, unreported, 23 October 1998) considered

JOHN SHEAHAN as Trustee of the Bankrupt Estate of RICHARD JOHN COOPER v NOELENE MICHELLE COOPER S 7017 OF 1999

MANSFIELD J ADELAIDE 8 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 7017 OF 1999

IN THE MATTER OF THE BANKRUPT ESTATE OF

RICHARD JOHN COOPER

BETWEEN: JOHN SHEAHAN

as Trustee of the Bankrupt Estate of

RICHARD JOHN COOPER