Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen [2009] FCA 778
PRACTICE AND PROCEDURE – jurisdiction – application for stay pursuant to Order 20 rule 5 of the Federal Court Rules – abuse of process – application for leave to amend statement of claim – financial agreement between former husband and wife under section 90C of the Family Law Act 1975 (Cth) – trustee in bankruptcy of husband applied in substantive proceedings to set aside transfer of property to respondent pursuant to financial agreement under section 120 and section 121 of the Bankruptcy Act – whether trustee in bankruptcy should have commenced proceedings under section 90 K of the Family Law Act to set aside financial agreement in the Family Court – whether abuse of process to bring action under section 120 and section 121 of the Bankruptcy Act instead of under section 90K of the Family Law Act – whether matter should be transferred from the Federal Court to the Family Court under section 35A of the Bankruptcy Act BANKRUPTCY AND INSOLVENCY – interaction of provisions of the Bankruptcy Act and Part VIIIA of the Family Law Act – impact of Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) – whether Federal Court can entertain an application under section 120 and section 121 of the Bankruptcy Act to set aside a transfer of property pursuant to a financial agreement Held: no abuse of process – Federal Court has jurisdiction to determine a claim with respect to a transfer of property pursuant to financial agreement under section 120 and section 121 of the Bankruptcy Act – not necessary for trustee in bankruptcy to apply under section 90K of the Family Law Act in the Family Court to set aside financial agreement – leave granted to amend statement of claim
Bankruptcy Act 1966 (Cth) ss 5, 35A, 120, 121, 123(6) Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) Family Law Act 1975 (Cth) Pt VIIIA, ss 4, 79A, 81, 90B, 90C, 90D, 90J, 90K Family Law Amendment Act 2000 (Cth) Federal Court Rules O 11 r 16(a) and (b), O 13 r 1, O 20 r 5, Explanatory Memorandum, Bankruptcy and Family Law Legislation Amendment Bill 2004 Explanatory Memorandum, Family Law Amendment Bill 2000
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