Pascoe v Voukidis Holdings Pty Ltd [2024] FCA 915

FEDERAL COURT OF AUSTRALIA

Pascoe v Voukidis Holdings Pty Ltd [2024] FCA 915 File number(s): VID 105 of 2023

Judgment of: BUTTON J

Date of judgment: 16 August 2024

Catchwords: BANKRUPTCY AND INSOLVENCY – transactions void against trustee – where first respondent proved in bankruptcy pursuant to loan agreement between it and the bankrupts dated 1 October 2010 (Loan Agreement) – where third respondent, a director of first respondent, and son of bankrupts, had chequered history of fabricating documents and giving false evidence – whether Loan Agreement backdated – whether Loan Agreement created security interest over bankrupts' home – whether first respondent entered into Loan Agreement as trustee of a trust or in its own capacity – amount for which first respondent should be admitted as creditor EQUITY – whether Loan Agreement created equitable mortgage or equitable charge – where first respondent's obligation to provide funds under Loan Agreement conditional upon having received a mortgage in registrable form "on terms acceptable to the Lender" – where bankrupts and borrowers under Loan Agreement required to use "best endeavours" to obtain a mortgage in registerable form EQUITY – unconscionable conduct – undue influence – whether relationship gives rise to presumption of undue influence outside established categories – whether Loan Agreement should be set aside – conditions on which Loan Agreement should be set aside – where bankrupts and borrowers under Loan Agreement elderly, retired and depended on son for income – where Loan Agreement imposed onerous terms, including a default interest rate of 24%, compounding monthly BANKRUPTCY AND INSOLVENCY – ss 120 and 121 of the Bankruptcy Act 1966 (Cth) – s 37A of the Conveyancing Act 1919 (NSW) – onus of proof – where bankrupts disposed of shares in first respondent within five years of beginning of bankruptcy – where shares later transferred to third respondent – whether share transfers void against trustee – whether trustee discharged onus of proving inadequacy of consideration