Anderson v Peldan [2005] FCA 1179

FEDERAL COURT OF AUSTRALIA

Anderson v Peldan [2005] FCA 1179 BANKRUPTCY – void transfers – where husband and wife owned property as joint tenants – where joint tenancy severed by mutual agreement to tenancy-in-common and subsequently wife died and husband declared bankrupt – whether severance of joint tenancy into tenancy-in-common is a 'transfer of property' for the purposes of s 121(1) of the Bankruptcy Act 1966 (Cth) – whether the defence of good faith is established under s 121(4) of the Act

Statutes Bankruptcy Act 1966 (Cth) ss 121(1), 5, 121(2), 121(4), 121(9), 121(5)

Cases Cannane v J Cannane Pty Ltd (1998) 192 CLR 557 Cited Corin v Patton (1990) 169 CLR 540 Cons Hardie v Hanson (1960) 105 CLR 415 Cited Lyons v Lyons (1967) VR 169 Cited Prentice v Cummins (No 5) [2002] FCA 1503 Cons Williams v Hensman (1861) 1 John & H 546 Cited Williams v Lloyd; In Re Williams (1934) 50 CLR 341 Cited Wright v Gibbons (1949) 78 CLR 313 Cited

BERNADETTE ANDERSON AND ROBYN MOLLEE AS EXECUTORS OF THE ESTATE OF THE LATE DOROTHY RUTH PINNA v MICHAEL PELDAN AND MORGAN LANE AS TRUSTEES OF THE BANKRUPT ESTATE OF RAYMOND KENNETH PINNA QUD 73 OF 2005 KIEFEL J BRISBANE 25 AUGUST 2005

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 73 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: BERNADETTE ANDERSON AND ROBYN MOLLEE AS EXECUTORS OF THE ESTATE OF THE LATE DOROTHY RUTH PINNA

APPELLANTS

AND: MICHAEL PELDAN AND MORGAN LANE AS TRUSTEES OF THE BANKRUPT ESTATE OF RAYMOND KENNETH PINNA

RESPONDENTS

JUDGE: KIEFEL J

DATE OF ORDER: 25 AUGUST 2005

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders of Jarrett FM made on 21 February 2005 be set aside. 3. The respondents pay the appellants costs of the appeal and of the proceedings below. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.