Pekar v Holden (Trustee) [2017] FCA 596

FEDERAL COURT OF AUSTRALIA

Pekar v Holden (Trustee) [2017] FCA 596 Appeal from: Holden in His Capacity as Trustee of the Bankrupt Estate of Pekar v Pekar [2017] FCCA 22

File number: VID 81 of 2017

Judge: TRACEY J

Date of judgment: 30 May 2017

Catchwords: BANKRUPTCY AND INSOLVENCY – appeal from the Federal Circuit Court – where the trial judge held that a transfer to the appellant from her husband of his interest as a joint tenant in a property was void against the trustee in bankruptcy pursuant to s 120(1) of the Bankruptcy Act 1966 (Cth) – whether the trial judge erred by holding that the solvency of the bankrupt at the time of the transfer was irrelevant – whether the trial judge erred by holding that the transfer had been made for no consideration CONSTITUTIONAL LAW – jurisdiction – "matter" – where dispute as to whether a transfer of an interest in property was void against the trustee in bankruptcy – order for sale of property – whether application for relief against non-bankrupt co-owner of property constitutes part of the same "matter" for the purposes of Chapter III of the Constitution CONVEYANCING – whether the trial judge erred in ordering the sale of the property – where s 30 of the Bankruptcy Act 1966 (Cth) does not provide power to order the sale of a property co-owned by another non-bankrupt person absent failure by that person to comply with an obligation under that Act – whether power to make an order for the sale of the property under the Property Law Act 1958 (Vic) – whether power conferred on the Federal Court of Australia by s 79 of the Judiciary Act 1903 (Cth) PRACTICE AND PROCEDURE – application to appoint a litigation representative pursuant to r 9.63(1) of the Federal Court Rules 2011 (Cth) – whether the appellant is a person under a legal incapacity – where absence of contemporaneous medical evidence