Marchesi v Apostolou [2007] FCA 986

FEDERAL COURT OF AUSTRALIA

Marchesi v Apostolou [2007] FCA 986

BANKRUPTCY – Torrens system land registered in name of bankrupt – Whether bankrupt had made effective gift of land – Whether bankrupt held beneficial title to land.

EQUITY – Gift of Torrens system land – Registered title not transferred – Instrument of transfer held by solicitor acting for donor and donee – Whether instrument had been delivered to donee – Whether donor had done everything necessary to be done by him to transfer registered title – Whether gift perfect in equity.

EQUITY – Torrens system land – Agreement by registered proprietor to transfer equitable interest for value – Full price not paid by other party to agreement – Agreement not complied with in other respects – Whether agreement specifically enforceable – Whether agreement gave rise to option – Whether other party acquired equitable interest in land as a result of agreement.

BANKRUPTCY – Gift of Torrens system land to registered proprietor's family trust – Whether purpose was to defeat creditors – Bankruptcy Act 1966 (Cth), s 121.

BANKRUPTCY – Torrens system land – Agreement by registered proprietor to transfer equitable interest for value – Whether purpose was to defeat creditors – Bankruptcy Act 1966 (Cth), s 121.

TRUSTEES – Land held on trust – Expenses and outgoings relating to land – Trustee incurring expenses incidental to proposed development of land but not in capacity of trustee – Whether trustee entitled to indemnity from trust estate.

Bankruptcy Act 1966 (Cth) Income Tax Assessment Act 1936 (Cth) Transfer of Land Act 1958 (Vic)

Australian Hardwoods Pty Ltd v Commissioner for Railways [1961] 1 WLR 425 Bahr v Nicolay [No 2] (1988) 164 CLR 604 Barba v Gas & Fuel Corporation of Victoria (1976) 136 CLR 120 Beneficial Finance Corporation Ltd v Multiplex Constructions Pty Ltd (1995) 36 NSWLR 510 Brown v Heffer (1967) 116 CLR 344 Brunker v Perpetual Trustee Co Ltd (1937) 57 CLR 555 Chang v Registrar of Titles (1976) 137 CLR 177 Commissioner of Taxes (Qld) v Camphin (1937) 57 CLR 127 Corin v Patton (1990) 169 CLR 540 Costin v Costin (1997) 7 BPR 15,167 Freeman v Pope (1870) LR 5 Ch App 538 Griffith v Pelton [1958] Ch 205 In re Button's Lease; Inman v Button [1964] Ch 263 Legione v Hateley (1983) 152 CLR 406 London and South Western Railway Co v Gomm (1882) 20 Ch D 562 Milroy v Lord (1862) 4 De G F & J 264 Nolan v Collie (2003) 7 VR 287 RWG Management Ltd v Commissioner for Corporate Affairs [1985] VR 385 Sainsbury PLC v O'Connor (Inspector of Taxes) [1991] 1 WLR 963 Sandell v Porter (1966) 115 CLR 666 Stern v McArthur (1988) 165 CLR 489 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 Vasiliou v Marchesi [2006] FCAFC 197 Wright v Dean [1948] Ch 686