Fodare Pty Ltd v Official Trustee in Bankruptcy [2000] FCA 1388

FEDERAL COURT OF AUSTRALIA

Fodare Pty Limited v Official Trustee in Bankruptcy [2000] FCA 1388 BANKRUPTCY – appeal against decision of primary judge that purchase of property represented a settlement void as against the Official Trustee – whether the acquisition involved a 'settlement of property' pursuant to s 120(2) Bankruptcy Act 1966 (Cth) (Reprint 4) – whether a finding that the bankrupt used the funds as her own, is evidence that the bankrupt was entitledto use the funds as her own - disbelief does not amount to positive evidence of what is disbelieved – whether primary judge proceeded upon basis that evidence relied upon must be corroborated, contrary to s 164(1) Evidence Act 1995 (Cth) – whether prima facie presumption that joint account holders have beneficial ownership of half the funds, is rebutted – whether funds held on trust for family and friends – whether Trustee guilty of long and prejudicial delay in asserting that there was a void settlement - defence of laches and acquiescence – to assert a proportionate beneficial interest in the property, Trustee must elect to pursue this remedy, as opposed to obtaining entry of judgment for the amount of the void settlement WORDS AND PHRASES – 'settlement of property' Bankruptcy Act 1966 (Cth) (Reprint No. 4) ss 120(2), 120(8), 139ZQ, 139ZR Evidence Act 1995 (Cth) s 164(1) Limitation Act 1969 (NSW) In re Mathieson [1927] 1 Ch 283 cited Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81 applied Re Ansett; Pattison (as Trustee of the Estate of Ansett) v Crosswell (unreported, 25 March 1998, Northrop J) applied Allcard v Skinner (1887) 36 ChD 145 cited Payne v Evens (1874) LR 18 Eq 356 distinguished Scott v Scott (1962) 109 CLR 649 applied FODARE PTY LIMITED AND DORIS EMILY ELIZABETH MILLER AND KATHLEEN ANNE HIRTZELL AND KEVIN TUBB v OFFICIAL TRUSTEE IN BANKRUPTCY AND OFFICIAL RECEIVER N 400 OF 2000 LEHANE, HELY & CONTI JJ 5 OCTOBER 2000