Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Sweeney v Cape [1999] FCA 1140
BANKRUPTCY – proceeds of three blocks of land sold by the bankrupt in 1992-3 largely distributed to his children, the first three respondents – trustee seeking to have proceeds of sale paid to him – notices issued by trustee under s 139ZQ of the Bankruptcy Act – application by bankrupt to set aside the s 139ZQ notices, review the trustee's conduct under s 178 of the Bankruptcy Act and reverse some of the trustee's actions – application by trustee for summary dismissal of bankrupt's applications – when trust in three blocks of land in favour of the bankrupt's children established – prior intention to gift land to children – whether moral obligation established – the existence of a constructive trust – proof of solvency at one time does not establish solvency at an earlier time – no evidence to establish state of bankrupt's solvency at the relevant time – absence of relevant fraudulent intent on the part of the bankrupt Bankruptcy Act 1966 (Cth) ss 120(1), 120(2), 121, 139ZQ, 178
Re Brown [1950] 15 ABC 74 Re Saebar [1971] 18 FLR 317 Re Hyams [1970] 19 FLR 232 Last v Rosenfeld [1972] 2 NSWLR 923 Organ v Sandwell [1921] VLR 622 Re Chemical Plastics Ltd (In Liq) [1959] VR 570 Re Doughty Bros [1895] 2 Ch D 54 (CA)
PAUL DESMOND SWEENEY v LISA JANE CAPE & ORS NG 7051 OF 1996 THE HON JUSTICE MARCUS EINFELD AO SYDNEY 24 AUGUST 1999
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NB 2488 OF 1994
BETWEEN: PAUL DESMOND SWEENEY
Applicant
AND: LISA JANE CAPE
First Respondent
RICHARD WILLIAM TIMOTHY CAPE
Second Respondent
JULIE ANN O'CONNOR
Third Respondent
WILLIAM TIMOTHY CAPE
Fourth Respondent
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