Macks (Trustee), in the matter of Weber (Bankrupt) [2006] FCA 636

FEDERAL COURT OF AUSTRALIA

Macks (Trustee), in the matter of Weber (Bankrupt) [2006] FCA 636 BANKRUPTCY – application for directions pursuant to s 134(4) of Bankruptcy Act 1966 (Cth) – husband, wife and son in partnership – husband and wife joint tenants of non-partnership properties – son tenant in common of one such property – alleged intention for son to be joint tenant – all 3 made bankrupt simultaneously – multiple bankrupt estates. BANKRUPTCY – proof of debt – whether a creditor can lodge proof in joint and separate estates when bankrupts jointly and separately liable to creditor – whether creditor required to elect estate – whether bankruptcy severed joint tenancies – whether trustee should ascertain intention of parties regarding son's claim to joint tenancy.

Held: Act provides for proof in respect of distinct contracts – no need for Court direction on issue of election – non-partnership co-owned property will only be capable of forming part of joint estate of joint debtors if co-ownership is as joint tenants – the joint tenancy of joint debtors made bankrupt at the same time will not sever upon bankruptcy – insufficient material to determine parties intention regarding son's claim to joint tenancy – not possible to determine basis of any possible claims – direction not given. Bankruptcy Act 1966 (Cth) s 110, s 134(4), s 156A(3) Bankruptcy Act 1861 (UK)s 152 Bankruptcy Act 1883 (UK) Sched II r 18 Bankruptcy Act 1914 (UK) Sched 2, r 19 Bankruptcy Act 1924 (Cth) Partnership Act 1891 (SA) s 2(1)(a) Property Law Act (SA)s 29

Re Driller (1972) 21 FLR 159 applied Re G B Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 cited Sutherland (in matter of Scutts) [1999] FCA 147 cited Re Lofthouse (2001) 107 FCR 151 cited Re Scott (1970) 16 FLR 416 followed Ex p Adamson; In re Collie (1878) 8 Ch D 807 cited Ex p Honey (1871) LR 7 Ch App 178 cited Western Australia v Bond Corporation Holdings Ltd (1992) 37 FCR 150 cited Re Francis; Ex parte Official Trustee in Bankruptcy (1988) 82 ALR 335 discussed Re Boots; Ex parte Official Receiver (1976) 26 FLR 320 discussed Sistrom v Urh (1992) 40 FCR 550 cited Re Holland; Ex parte Official Trustee in Bankruptcy (1985) 5 FCR 165 cited Re Prestia [2001] FCA 792 cited Cummings v Claremont Petroleum NL (1996) 185 CLR 124 cited Re Lemon Tree Passage & Districts RSL and Citizens Club Cooperative Ltd (1987) 11 ACLR 796 applied