Parianos v Melluish (Trustee) [2003] FCA 190

FEDERAL COURT OF AUSTRALIA

Parianos v Melluish (Trustee) [2003] FCA 190 BANKRUPTCY – constructive trust – husband dies and his estate is made bankrupt - matrimonial home registered in husband's name alone on his death – whether wife had a constructive trust over the whole or one half share of the home or whether the equitable interest in the home rests in the trustee in bankruptcy – whether an equitable interest held to exist under a constructive trust would arise prior to the bankruptcy.

Bankruptcy Act 1966 (Cth) Family Law Act 1975 (Cth) ss 78 and 79 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 5(5)(b)(ii) Muschinski v Dodds (1985) 160 CLR 583 followed Baumgartner v Baumgartner (1987) 164 CLR 137 followed Green v Green (1989) 17 NSWLR 343 applied Calverley v Green (1984) 155 CLR 242 considered Bryson v Bryant (1992) 29 NSWLR 188 considered Pettitt v Pettitt [1970] AC 777 referred to Gissing v Gissing [1971] AC 886 referred to Parsons v McBain (2001) 109 FCR 120 followed Sonenco (No 77) Pty Ltd v Silvia (1989) 24 FCR 105 referred to ISABELLA CAMPBELL PARIANOS v JOHN MELLUISH (AS TRUSTEE FOR THE ESTATE OF THE LATE GEORGE PARIANOS) N 7189 of 2002 JACOBSON J 13 MARCH 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N7189 of 2002

BETWEEN: ISABELLA CAMPBELL PARIANOS

APPLICANT

AND: JOHN MELLUISH (AS TRUSTEE FOR THE ESTATE

OF THE LATE GEORGE PARIANOS)

RESPONDENT

JUDGE: JACOBSON

DATE OF ORDER: 13 MARCH 2003

WHERE MADE: SYDNEY

THE COURT DECLARES: 1 the late George Parianos held his interest in the Drummoyne property upon trust for the Applicant and himself as joint tenants; 2 that upon his death his legal personal representative held the Drummoyne property upon trust for the Applicant; and 3 that the Drummoyne property is not divisible among the creditors of the late George Parianos in bankruptcy pursuant to the Bankruptcy Act, s 116(2). THE COURT ORDERS THAT: 4. the respondent transfer the Drummoyne property to the applicant. 5. the respondent pay the costs of these proceedings other than the costs incurred in the Family Court as to which there is to be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.