Gosling v McCombie [1972] HCA 40

High Court of Australia Barwick C.J. Menzies and Walsh JJ. Gosling v McCombie [1972] HCA 40

ORDER Order of the Federal Court of Bankruptcy varied by—

(i) Setting aside the order refusing the appellant's application in respect of each of the four properties mentioned in the said application, and in lieu thereof ordering that the land contained in Certificate of Title Vol. 10358 Fol. 249 is the exclusive property of the appellant and is not to be treated as an asset of the estate of Victor Gosling;

(ii) deleting from the declarations made upon the application of the respondent the reference to the land contained in the said Certificate of Title.

Appeal otherwise dismissed.

Cur. adv. vult.

The following written judgments were delivered:—

July 26 Barwick C.J.

The Federal Court of Bankruptcy declared that by virtue of s. 111 of the Bankruptcy Act 1966-1970 Cth (the Act) an undivided interest in four lots of land registered under the Real Property Act, 1900-1967 N.S.W. in the joint names of husband and wife was to be treated as an asset in the bankrupt estate of the husband. The appellant, the wife of the bankrupt, seeks to discharge that declaration and seeks an order that the whole beneficial interest in the four lots of land belongs to her exclusively.

The facts as found or accepted for the purposes of the proceedings are that the appellant purchased the fee simple in the four properties in question out of her own funds, paid the whole consideration for their transfer but caused them to be registered in the names of herself and her husband as joint tenants. She did not give him any beneficial interest in the properties, but the husband held the undivided moiety vested in him as trustee for her.

One of the properties was mortgaged in 1965 to secure the sum of $4,000. Another was mortgaged in 1966 to secure a like sum. At some time a third was mortgaged, presumably by deposit of the two relevant certificates of titles, to the bank at which the parties had a joint account, to secure an overdraft. The fourth property was not encumbered at any time.