Mathai v Nelson [2012] FCA 1448

FEDERAL COURT OF AUSTRALIA

Mathai v Nelson [2012] FCA 1448 Citation: Mathai v Nelson [2012] FCA 1448

Appeal from: Nelson v Mathai [2011] FMCA 686

Parties: MATHEW KERALAVAKAYIL MATHAI, WEE ENG POH, MARGARET MATHAI, MICHAEL LEE MATHAI, GERALD MATHAI and DEIDRE MATHAI v SIMON PATRICK NELSON AS TRUSTEE OF THE PROPERTY OF MATHEW KERALAVAKAYIL MATHAI A FORMER BANKRUPT

File number: VID 1038 of 2011

Judge: TRACEY J

Date of judgment: 21 December 2012

Catchwords: BANKRUPTCY – appeal from decision of Federal Magistrate – whether s 121 of the Bankruptcy Act 1966 (Cth) requires that creditor at time of impugned transfer be proving or capable of proving in bankruptcy – whether s 121 of the Bankruptcy Act 1966 (Cth) operated extra-territorially – whether two properties purchased by bankrupt – consideration of principles relevant to required approach to assessment of evidence – whether funds transferred to effect purchases of property would probably have become part of bankrupt's estate and available to creditors

Legislation: Bankruptcy Act 1966 (Cth), ss 77C, 81, 121 Bankruptcy Act 1861 (UK), s 192 Evidence Act 1995 (Cth), s 67

Cases cited: Barton v Deputy Commissioner of Taxation (1974) 131 CLR 370 – cited Barton v Official Receiver (1986) 161 CLR 75 – cited British Railways Board v Herrington [1972] AC 877 – considered Cannane v Cannane Pty Ltd (1998) 192 CLR 557 – cited Ebner v Official Trustee in Bankruptcy (1999) 91 FCR 353 – considered Morgan v White (1912) 15 CLR 1 – considered Nelson v Mathai (2011) 253 FLR 139 Official Trustee in Bankruptcy v Alvaro (1996) 66 FCR 372 – considered Robertson v Smith [1998] 4 VR 165 – cited Transport Industries Insurance Company Limited v Longmuir [1997] 1 VR 125 – considered, applied Trautwein v Richardson [1946] ALR 129 – cited The trustees of the property of Cummins v Cummins (2006) 227 CLR 278 – cited Wood v De Mattos (1865) LR Ex 91 – considered