Marchesi v Apostoulou [2006] FCA 1122

FEDERAL COURT OF AUSTRALIA

Marchesi v Apostoulou [2006] FCA 1122

BANKRUPTCY – whether bankrupt beneficial owner of properties EQUITY – whether gift of properties to family trust perfected – whether bankrupt did all that was necessary to be done in order to transfer properties and render settlement binding upon him – significance of absence of evidence that consent of mortgagees had been obtained Held – (i) the gift of properties to the family trust was not perfected (ii) the bankrupt therefore retains beneficial and legal title to the properties, which passes to his trustee in bankruptcy by virtue of his bankruptcy Bankruptcy Act 1966 (Cth) s 58 Milroy v Lord (1862) 4 De GF & J 264 discussed Anning v Anning (1907) 4 CLR 1049discussed Brunker v Perpetual Trustee Co (Ltd) (1937) 57 CLR 555discussed Olsson v Dyson (1969) 120 CLR 365referred to Corin v Patton (1990) 169 CLR 540applied Costin v Costin (1997) 7 BPR 15,167 discussed BRENDAN JOHN MARCHESI (as trustee of the bankrupt estate of ANDREW VASILIOU) v VASILIKI APOSTOULOU (as trustee of the VASILIOU FAMILY TRUST) AND ANDREW VASILIOU, a bankrupt VID 235 OF 2005

WEINBERG J

23 AUGUST 2006

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 235 OF 2005

IN THE MATTER OF THE BANKRUPT ESTATE OF ANDREW VASILIOU BETWEEN: BRENDAN JOHN MARCHESI (as Trustee of the bankrupt estate of ANDREW VASILIOU)

Applicant

AND: VASILIKI APOSTOULOU (as Trustee of the VASILIOU FAMILY TRUST)

First Respondent

ANDREW VASILIOU, a bankrupt

Second Respondent

JUDGE: WEINBERG J

DATE OF ORDER: 23 AUGUST 2006

WHERE MADE: MELBOURNE

THE COURT DECLARES THAT: 1. The beneficial title to each of the following properties has vested in the applicant pursuant to s 58 of the Bankruptcy Act 1966 (Cth): (a) the property at 5/3 Alfriston Street, Elwood, Victoria, being the property more particularly described in Certificates of Title Volume 9012, Folios 077, 083 and 092; (b) the property at 18 St Kilda Road, St Kilda, Victoria, being the property more particularly described in Certificate of Title Volume 4509, Folio 646 and Certificate of Title Volume 10088, Folio 011; and (c) the property at 10 Claremont Street, South Yarra, Victoria, being the property more particularly described in Certificate of Title Volume 1173, Folio 541.