Lopatinsky v Official Trustee in Bankruptcy, in the matter of Lopatinsky [2003] FCA 1256

FEDERAL COURT OF AUSTRALIA

Lopatinsky v Official Trustee in Bankruptcy, in the matter of Lopatinsky [2003] FCA 1256 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 - financial and non-financial contributions to property – whether a constructive trust in operation – where significant difference in contributions. Bankruptcy Act 1966 (Cth), ss 120, 139ZS Baumgartner v Baumgartner (1987) 164 CLR 137 referred to Muschinski v Dodds (1985) 160 CLR 583 referred to Parij v Parij (1997) 72 SASR 153 referred to

IN THE MATTER OF WLADIMIR LOPATINSKY

MARGARET GRACE LOPATINSKY v OFFICIAL TRUSTEE IN BANKRUPTCY N 7433 of 2001 MOORE J 6 NOVEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7433 OF 2001

IN THE MATTER OF WLADIMIR LOPATINSKY

BETWEEN: MARGARET GRACE LOPATINSKY

APPLICANT & CROSS RESPONDENT

AND: OFFICIAL TRUSTEE IN BANKRUPTCY

RESPONDENT & CROSS CLAIMANT

JUDGE: MOORE J

DATE OF ORDER: 6 NOVEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The cross-claim of the Official Trustee in Bankruptcy be dismissed. 2. The notice given to the applicant under s 139ZQ of the Bankruptcy Act 1966 (Cth) on 8 June 2001 be set aside. 3. The Official Trustee in Bankruptcy pay the applicant's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7433 OF 2001

IN THE MATTER OF WLADIMIR LOPATINSKY

BETWEEN: MARGARET GRACE LOPATINSKY

APPLICANT & CROSS RESPONDENT

AND: OFFICIAL TRUSTEE IN BANKRUPTCY