Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Shepard (Trustee) v Behman [2019] FCA 1801 File number(s): NSD 1509 of 2018
Judge(s): THAWLEY J
Date of judgment: 1 November 2019
Catchwords: BANKRUPTCY AND INSOLVENCY – transfer of property before bankruptcy – application by trustee for relief under ss 120 and 121 of the Bankruptcy Act 1966 (Cth) and s 37A of the Conveyancing Act 1919 (NSW) in relation to a Deed of Settlement and transfer of property –whether intention to defeat creditors – whether consideration was less than the market value – whether transfer made in good faith – consideration of the transferor's "main purpose" EQUITY – claim of equitable interest in property – constructive trust – based on common intention – money contributed to common pool of funds used for mortgage repayments and various other expenses
Legislation: Bankruptcy Act 1966 (Cth) ss 5(2), 5(3), 115, 116(2), 120, 121, 236(1)(d) Conveyancing Act 1919 (NSW) s 37A Evidence Act 1995 (Cth) s 140(2) Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s 5(1)
Cases cited: Baumgartner v Baumgartner [1987] HCA 59 Behman v Behman [2016] NSWCA 295 Bringinshaw v Briginshaw (1938) 60 CLR 336 Cannane v J Cannane Pty Ltd (in liquidation) (1998) 192 CLR 557 Chen v Marcolongo; Chen v Lym International Pty Ltd [2009] NSWCA 326 Clout v Markwell [2001] QSC 91 Daniel Terry Behman v Tarek Behman (also known as Terry Behman) [2015] NSWSC 1787 Donnelly v Windoval Pty Ltd [2014] FCA 80 Federal Commissioner of Taxation v Sharpcan [2019] HCA 36 Giumelli v Giumelli (1999) 196 CLR 101 Grant v Edwards [1986] Ch 638 Green v Green (1989) 17 NWSLR 343 Jabbour v Sherwood [2003] FCA 529 Maharaj v Chand [1986] AC 898 Marcolongo v Chen (2011) 242 CLR 546 Muschinski v Dodds (1985) 160 CLR 583 News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 Parsons v McBain (2001) 109 FCR 120 Prentice v Cummins (No 5) (2002) 124 FCR 67 Shepherd v Doolan & Ors [2005] NSWSC 42 Trustees of the Property of Cummins (a Bankrupt) v Cummins (2006) 227 CLR 278 West v Mead [2003] NSWSC 161 Zreika v Royal [2019] FCAFC 82
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