Rankin v Official Trustee in Bankruptcy [2005] FCA 1084

FEDERAL COURT OF AUSTRALIA

Rankin v Official Trustee in Bankruptcy [2005] FCA 1084 BANKRUPTCY – contract to purchase home – subsequent bankruptcy then statutory discharge after three years – amounts due to vendor and secured creditor exceed value – bankrupts remain in possession for nine years – subsequent increase in value – home sold – whether bankrupts or trustee entitled to so much of proceeds as equal debts of unsecured creditors and costs, charges and expenses of trustee – whether trustee disclaimed interest in original contract – whether new contract – whether trustee estopped from asserting any title to proceeds of sale ESTOPPEL – whether general principles of estopped applicable in statutory scheme of bankruptcy – whether estoppel against trustee asserting after discharge title to bankrupts' interest as purchasers under contract which had vested in trustee under their bankruptcy Bankruptcy Act 1966 (Cth) ss 58, 133 (1A) Homes Act 1935 (Tas) ss 3, 29(2), 17(7) Conveyancing and Law of Property Act 1884 (Tas) s 36 O'Brien v Sheahan [2002] FCA 1292 at [45] – [46] cited Re Balhorn; ex Parte Balhorn and Official Trustee (1981) 39 ALR 223 at 226 followed Gosden v Dixon (1992) 107 ALR 329 at 331 followed Dixon v Riquero [2004] FMCA 173 at [19] cited Legione v Hateley (1983) 152 CLR 406 at 436-437 applied Muschinski v Dodds (1985) 160 CLR 583 at 620 applied Sheahan v O'Brien [2003] HCATrans 308 MALCOLM RANKIN and BARBARA RANKIN v OFFICIAL TRUSTEE IN BANKRUPTCY NO TAD 16 OF 2004 HEEREY J 8 AUGUST 2005 MELBOURNE (HEARD IN HOBART)

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY TAD 16 OF 2004

BETWEEN: MALCOLM RANKIN and BARBARA RANKIN

APPLICANTS

AND: OFFICIAL TRUSTEE IN BANKRUPTCY

RESPONDENT

JUDGE: HEEREY J