Lopatinsky v Official Trustee in Bankruptcy, in the matter of Lopatinsky [2002] FCA 861

FEDERAL COURT OF AUSTRALIA

Lopatinsky v Official Trustee in Bankruptcy, in the matter of Lopatinsky [2002] FCA 861

BANKRUPTCY – application to set aside s139ZS notice issued on behalf of official receiver – cross-claim by Trustee seeking repayment of an amount transferred to the applicant by the bankrupt – payment to wife by husband on failure of marriage – whether consideration at market value was given for the transfer – where transfer in question was understood to be part of a division of marital property upon separation – whether an informal understanding between the applicant and the bankrupt can constitute an implied forbearance to sue – whether an implied forbearance to sue can constitute consideration for the purposes of s 120 – where no orders were made by Family Court to give effect to the agreement between the applicant and the bankrupt.

Bankruptcy Act 1966 (Cth) ss 120, 139ZS, 139ZQ Family Law Act 1975 (Cth) ss 44(3), 78, 79

Halse v Norton (1997) 76 FCR 389 cited Victorian Producers' Co-Operative Co Ltd v Kenneth [1999] FCA 1488 cited Mateo v Official Trustee in Bankruptcy (2002) 188 ALR 667 discussed Re: Sabri; Ex parte Brien v Sabri (1997) 137 FLR 165 discussed Sutherland v Brien [1999] NSWSC cited Wigan v English and Scottish Law Life Assurance Association [1909] 1 Ch 291) referred to Re Pope; Ex parte Dicksee [1908] 2 KB 169 referred to Re Abbott (a bankrupt); Ex parte the trustee of the property of the bankrupt v Abbott [1982] 3 All ER 181 referred to Pearson, Re: Ex parte Wansley v Pearson (1993) 46 FCR 55 referred to

MARGARET GRACE LOPATINSKY v OFFICIAL TRUSTEE IN BANKRUPTCY, IN THE MATTER OF wladimir LOPATINSKY N 7433 of 2002 MOORE J 11 JULY 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7433 OF 2002

BETWEEN: MARGARET GRACE LOPATINSKY