MILLER v OFFICIAL TRUSTEE IN BANKRUPTCY AND EDWARDS [1997] NSWCA 203

MILLER v OFFICIAL TRUSTEE IN BANKRUPTCY AND EDWARDS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MASON P and BEAZLEY JA 14, 24 July 1997

[1997] NSWCA 203

Summons for leave to appeal — question of Court's jurisdiction to set aside consent order — mistake as to validity of marriage under Australian law — incomplete litigation

Mason P and Beazley JA. The claimant (Mr Miller) seeks leave to appeal from certain orders of Simos J. The orders dispose of part only of the issues raised in the proceedings, thereby giving effect to an arrangement between the parties that they would litigate only some of the issues on the basis that the resolution of those issues would (had it gone the other way) have effectively ended the proceedings.

In 1993 Mr Miller was sued by the second opponent (Ms Edwards) who claimed relief under the De Facto Relationships Act 1984. The parties exchanged verified pleadings. It was common ground between them that they had lived together as man and wife on a bona fide domestic basis since 1976. Equally common ground was the fact that the parties were unmarried. In May 1994 the proceedings were settled. Consent orders were made which effectively distributed between the parties the assets acquired during the course of their relationship. Both real and personalestate were involved. It would appear that these orders were carried into effect shortly thereafter.

In June 1995 Mr Miller was made bankrupt on his own petition. The first opponent in the proceedings in the Court of Appeal (the Official Trustee in Bankruptcy) was appointed trustee of his bankrupt estate. During the course of the bankrupt's examination, it emerged that Mr Miller and Ms Edwards had entered into a ceremony of marriage in Hawaii in 1986, and that this marriage remained undissolved.

After seeking initially to be joined as a party in the completed 1993 proceedings, the Official Trustee in Bankruptcy commenced fresh proceedings in December 1996. Initially the only defendant was Ms Edwards. However Mr Miller was subsequently added as a defendant. In those proceedings the Official Trustee sought in various ways to challenge and set aside the consent orders made in May 1994; a declaration that the marriage between Mr Miller and Ms Edwards was valid under Australian law and had not been dissolved; and the setting aside of the transfers of property made by Mr Miller to Ms Edwards. The Official Trustee seeks the last mentioned orders as to the revesting of property transferred by Mr Miller to Ms Edwards in the Official Trustee, relying on ss 120 and 121 of the Bankruptcy Act. At least in part, such claimed relief appears to be consequent upon the setting aside of the consent orders made in the earlier proceedings.