Peldan v Anderson [2006] HCA 48

HIGH COURT OF AUSTRALIA

GUMMOW ACJ,

KIRBY, HAYNE, CALLINAN AND CRENNAN JJ

MICHAEL PELDAN (AS TRUSTEE OF THE

BANKRUPT ESTATE OF RAYMOND

KENNETH PINNA) & ANOR APPELLANTS

AND

BERNADETTE ANDERSON (AS EXECUTOR OF THE

ESTATE OF THE LATE DOROTHY RUTH PINNA)

& ANOR RESPONDENTS

Peldan v Anderson [2006] HCA 48

4 October 2006

B110/2005

ORDER

1. Grant leave for the amended notice of contention dated 23 June 2006 to be filed out of time.

2. Allow the appeal to the extent necessary to vary order 2 made by Kiefel J on 25 August 2005 so that it reads:

"The orders of Jarrett FM made on 22 February 2005 be set aside, and in their place order that the application to the Federal Magistrates Court filed 20 August 2004 be dismissed."

3. Appeal otherwise dismissed with costs.

On appeal from the Federal Court of Australia

Representation

D R Cooper SC with M D Martin for the appellants (instructed by Quinn & Scattini)

A J H Morris QC with L A Jurth for the respondents (instructed by Bennett Carroll)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Peldan v Anderson

Bankruptcy − Transfers to defeat creditors − s 121(1)(a) of the Bankruptcy Act 1966 (Cth) ("the Act") − Transfers of property void against the trustee in bankruptcy if the property would probably have become part of the transferor's estate or would probably have been available to creditors if the property had not been transferred − Where pursuant to s 121(9)(b) of the Act property that did not previously exist is taken to have been transferred for the purposes of s 121 of the Act − Where the bankrupt unilaterally severed a joint tenancy in Torrens title land held between himself and his wife who later died prior to his bankruptcy − Whether s 121(9)(b) of the Act operated so as to take the bankrupt to have transferred property to his wife − Whether that property would probably have become part of the transferor's estate in bankruptcy if the property had not been transferred.