Deryk Rowan Andrew as Trustee for Estate of Colin George Ward (Deceased) v Zant Pty Ltd & Ors [2004] FCA 1716

FEDERAL COURT OF AUSTRALIA

Deryk Rowan Andrew as Trustee for Estate of Colin George Ward (Deceased) v Zant Pty Ltd & Ors [2004] FCA 1716 BANKRUPTCY – Bankruptcy Act 1966 (Cth), s 116 – application by trustee in bankruptcy for declarations that five properties registered in the names of various companies or individuals were beneficially owned by the bankrupt – bankrupt provided purchase monies for the properties – companies and trusts which prima facie owned the properties controlled by the bankrupt - whether properties held on resulting trust for the bankrupt BANKRUPTCY - Bankruptcy Act 1966 (Cth), s 121 – whether bankrupt had main purpose of preventing property being divisible among creditors - whether bankrupt had main purpose of hindering or delaying creditors – bankrupt conducted business in cash and failed to lodge tax returns - bankrupt later filed income tax returns late in response to audit by Commissioner of Taxation- bankrupt gave purchase monies to a trust for the benefit ultimately of his son – whether bankrupt's main purpose was to hinder or delay the Commissioner of Taxation recovering unpaid income tax BANKRUPTCY - Bankruptcy Act 1966 (Cth), s 121 – burden of proof – trustee must show that property vested in the bankrupt – slight degree of proof required to shift the burden if all facts within knowledge of persons other than the trustee

Bankruptcy Act 1966 (Cth), ss 116, 121 Conveyancing Act 1919 (NSW), s 37A Income Tax Assessment Act 1936 (Cth) Jack v Smail (1905) 2 CLR 684 cited Official Trustee in Bankruptcy v Alvaro (1996) 138 ALR 341 cited Cannane v J Cannane Pty Ltd (1998) 192 CLR 557 referred to Garuda Indonesia Ltd v Grellman (1992) 107 ALR 199 cited The Official Trustee v Marchiori (1983) 69 FLR 290 cited Re Trautwein; Richardson v Trautwein (1944) 14 ABC 61 cited Michael v Thompson (1894) 20 VLR 548 cited Dyer v Dyer (1788) 2 Cox 92 cited Napier v Public Trustee (WA) (1980) 32 ALR 153 cited Calverley v Green (1985) 155 CLR 242 cited Nelson v Nelson (1994) 33 NSWLR 740 cited Rochefoucauld v Boustead [1897] 1 Ch 196 cited Sharrment Pty Ltd & Ors v Official Trustee in Bankruptcy (1988) 18 FCR 449 cited Snook London & West Riding Investments [1967] 2 QB 786 cited Houvardas v Zaravinos (2003) 202 ALR 535 cited Farrar v Commissioner of Stamp Duties (1975) 5 ATR 364 cited Re Mendonca (1969) 15 FLR 256 referred to Clyne v Deputy Commissioner of Taxation (1981) 140 CLR 1 referred to Barton v Deputy Commissioner of Taxation (1974) 131 CLR 370 cited R P Meagher & W M C Gummow, Jacob's Law of Trusts in Australia, 6th Edition DERYK ROWAN ANDREW AS TRUSTEE FOR ESTATE OF COLIN GEORGE WARD (DECEASED) v ZANT PTY LTD & ORS N 122 of 2003 HILL J 23 DECEMBER 2004 SYDNEY