Prentice v Cummins (No 6) [2003] FCA 1002

FEDERAL COURT OF AUSTRALIA

Prentice v Cummins (No 6) [2003] FCA 1002 PRACTICE AND PROCEDURE – motion to separate causes of action the subject of earlier no case submissions from remaining causes of action – respondents had elected to call no evidence in relation to the causes of action subject to the no case submissions – applicants entitled to cross examine respondent on all issues relevant to proceedings, including the causes of action the subject of no case submissions BANKRUPTCY – application pursuant to s 121 of the Bankruptcy Act 1966 (Cth) – quantum of Bankrupt's beneficial interest in matrimonial home registered in joint names – Bankrupt's wife contributed nearly two-thirds of purchase price - presumption of resulting trust rebutted – common intention to acquire property as joint beneficial owners –Trustees entitled to 50 per cent of net proceeds of sale BANKRUPTCY – whether Bankrupt was beneficially entitled to share held in his name – company acquired by the Bankrupt's wife to act as trustee of her family trust – wife paid for share and acquisition costs – presumption of resulting trust applies – Trustees' claim to share dismissed Bankruptcy Act 1966 (Cth), ss 120, 121 Evidence Act 1995 (Cth), ss 11, 27, 26(a), 135(a), (b), 144 Family Law Act 1979 (Cth), s 79 Property (Relationships) Act 1984 (NSW), s 8 Family Provision Act 1982 (NSW) Prentice v Cummins (No 4) [2002] FCA 1215 cited Prentice v Cummins (No 5) (2002) 51 ATR 400 cited Brady v Stapleton (1952) 88 CLR 322 cited Jones v Dunkel (1959) 101 CLR 298 applied Mayor and Corporation of Berwick-Upon-Tweed v Murray (1850) 19 LJ Ch 281 followed Morgan v Brydges (1818) 2 Stark 314; 171 ER 657 cited R v Chin (1985) 157 CLR 671 cited GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 cited Re Woodfine; Thompson v Woodfine (1878) 47 LJ Ch 832 cited Calverley v Green (1984) 155 CLR 242 cited Bryson v Bryant (1992) 29 NSWLR 188 cited Muschinski v Dodds (1985) 160 CLR 583 cited Baumgartner v Baumgartner (1987) 164 CLR 137 cited Brown v Brown (1993) 31 NSWLR 582 cited Nelson v Nelson (1995) 184 CLR 538 cited Official Trustee in Bankruptcy v Lopantinsky [2003] FCAFC 109 cited Pettitt v Pettitt [1970] AC 777 cited Shephard v Cartwright [1955] AC 431 cited Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 cited Doohan v Nelson [1973] 2 NSWLR 320 cited Vedejs v Public Trustee [1985] VR 569 cited Cattanach v Melchior (2003) 77 ALJR 1312 cited Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 cited JD Heydon, Cross on Evidence (6th Aust ed, 2000) RM Stonham, The Law of Vendor and Purchaser (1964) MAXWELL WILLIAM PRENTICE & ANOR (together the Trustees of the property of John Daniel Cummins, a Bankrupt) v MARY ELIZABETH CUMMINS & ORS N 7481 of 2001 SACKVILLE J SYDNEY 24 SEPTEMBER 2003