Jabbour v Sherwood [2003] FCA 529

FEDERAL COURT OF AUSTRALIA Jabbour v Sherwood [2003] FCA 529 BANKRUPTCY – prior transfer of property – husband to wife – transfer of house property – sale of business and forgiveness of two thirds of sale price – application to set aside notice before Federal Magistrate's Court – cross-application for declarations that transfers void as against trustees – application dismissed – appeal against Federal Magistrate's decision – challenges to fact findings – claim of equitable interest in house property – no finding by magistrate – appeal allowed in relation to failure of magistrate to make finding on claim for equitable interest. Bankruptcy Act 1966 (Cth) s 139ZQ, s 120, s 121, s 139ZS Muschinski v Dodds (1986) 160 CLR 583 Baumgartner v Baumgartner (1987) 164 CLR 137 McVeigh v Zanella [2002] FCA 1890 Parsons v McBain (2001) 109 FCR 120 Re Osborn (1989) 25 FCR 547 Giumelli v Giumelli (1999) 196 CLR 101 La Rosa Ex parte: Norgard v Rocom Pty Ltd (1990) 21 FCR 270 Re Ward; Official Trustee v Dabnas Pty Ltd (1984) 3 FCR 112 Re Ocean Downes (1989) 1 Qd R 648 Qiugley v Cockburn (1993) 11 ACLC 424 MARIE-VONE JABBOUR v JOHN SHERWOOD (OFFICIAL RECEIVER IN BANKRUPTCY) and CHARLES PHILIPPE LOUIS NILANT and OREN ZOHAR (JOINT AND SEVERAL TRUSTEES) W230 of 2002 FRENCH J 28 MAY 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W230 OF 2002

BETWEEN: MARIE-VONE JABBOUR

APPELLANT

AND: JOHN SHERWOOD (OFFICIAL RECEIVER IN BANKRUPTCY)

FIRST RESPONDENT

CHARLES PHILIPPE LOUIS NILANT and OREN ZOHAR (JOINT AND SEVERAL TRUSTEES)

SECOND RESPONDENTS

JUDGE: FRENCH J

DATE OF ORDER: 28 MAY 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appeal is allowed. 2. Paragraphs 1, 4 and 5 of the orders made by the learned magistrate on 26 June 2002 and the whole of the orders made on 5 September 2002 are set aside. 3. The matter is remitted to the learned magistrate to consider and make findings of all necessary facts going to the existence of any equitable interest to which the appellant was entitled in the house and land at 4 Fawk Corner, Ballajura and, depending upon those findings, to make appropriate orders including orders relating to the sums payable by her to the second respondents and the appropriate costs orders in relation to the proceedings before the learned magistrate in the light of those findings. 4. The appellant is to pay two-thirds of the respondents' costs of the appeal. 5. In the event that either party seeks a variation of the order relating to the costs of the appeal, the party is to file written submissions in respect of any such variation within seven days. 6. The parties are at liberty within seven days to apply for any further order which may be necessary to give effect to the reasons for judgment. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.