Sutherland v Hanna [2004] NSWSC 900

New South Wales Supreme Court

CITATION : Sutherland v Hanna [2004] NSWSC 900 HEARING DATE(S) : 26/06/04, 29/06/04, 07/09/04, 08/09/04 JUDGMENT DATE : 30 September 2004

JUDGMENT OF : Gzell J DECISION : Declaration that the bankrupt's interests in the properties vest in the trustee of the bankrupt's estate under the Bankruptcy Act 1966 (Cth), s 58 and that the trustee is entitled to be registered as proprietor of them. Cross claimant entitled to no relief under the second further amended cross claim.

CATCHWORDS : BANKRUPTCY - Proceedings in Connection with Sequestration - Whether trustee of bankrupt's estate entitled to the bankrupt's interests under contracts for the purchase of land exchanged before his discharge and whether entitled to be registered as proprietor of the properties - Whether the bankrupt held the interests as bare trustee for the cross claimant wife of the bankrupt - Whether there was a resulting trust in favour of the cross claimant due to her contributions to the purchase price of the properties - Whether in light of those contributions there was a constructive trust in favour of the cross claimant LEGISLATION CITED : Bankruptcy Act 1966 (Cth) Calverley v Green (1984) 155 CLR 242 Napier v Public Trustee (WA) (1981) 55 ALJR 1 CASES CITED : Mercier v Mercier [1903] 2 Ch 98 Muschinski v Dodds (1984-1985) 160 CLR 583 Meagher, Gummow, Jacobs' Law of Trusts In Australia (6th edition) , Sydney, Butterworths, 1997 Roderick Mackay Sutherland as Trustee of the Bankrupt Estate of John Hanna aka John Mhanna - Plaintiff PARTIES : John Hanna aka John Mhanna - First Defendant Eman Kamel Shonoda - Second Defendant FILE NUMBER(S) : SC 5506/03 COUNSEL : Mr J T Johnson - Plaintiff Mr V Gray - Defendants SOLICITORS : Sally Nash & Co Solicitors - Plaintiff Malcolm Johns & Co Lawyers - 1st & 2nd Defendant