The Official Trustee in Bankruptcy v Macalindong [2016] NSWSC 1735

The Official Trustee in Bankruptcy v Macalindong [2016] NSWSC 1735

The Court was not persuaded that the alleged May 2007 arrangement existed or that the Bankrupt agreed to assign her interest in the North Ryde Property, or other properties, for $50,000. The evidence of payments beyond $32,431.85 was not credible, the statutory declarations did not reliably corroborate the alleged arrangement, and the Bankrupt's statement of affairs and later communications were inconsistent with any prior assignment. Accordingly, at the commencement of bankruptcy the Bankrupt remained the beneficial owner of a moiety in the North Ryde Property and the North Arm Cove Property, that interest vested in the Official Trustee, the cross-claim should be dismissed with costs,...

Jurisdiction
Australia
Judgment Date
12 December 2016
Procedural Posture
Equity Proceedings for Appointment of Trustees for Sale Under S 66 G of the Conveyancing Act 1919 (nsw), With Cross Claim for Declaration of Beneficial Ownership / Principal Judgment After Hearing
Outcome
The Court concluded that the cross-claim should be dismissed with costs and that orders should be made under s 66G of the Conveyancing Act 1919 (NSW), but deferred formal orders pending short minutes and any submissions on distribution of sale proceeds.
Legal Topics
['appointment of Trustees for Sale' 'beneficial Ownership of Jointly Owned Property' 'alleged Assignment of Equitable Interest Between Former Spouses' 'credibility of Evidence and Statutory Declarations' "vesting of Bankrupt's Property in the Official Trustee"]
['real Property' 'equity' 'bankruptcy'] ['appointment of Trustees for Sale' 'beneficial Ownership of Jointly Owned Property' 'alleged Assignment of Equitable Interest Between Former Spouses' 'credibility of Evidence and Statutory Declarations' "vesting of Bankrupt's Property in the Official Trustee"]

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Procedural Posture

Equity Proceedings for Appointment of Trustees for Sale Under S 66 G of the Conveyancing Act 1919 (nsw), With Cross Claim for Declaration of Beneficial Ownership / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether, as at 14 September 2010 when Ms Josefina Macalindong became bankrupt, she was the beneficial owner of an interest in the North Ryde Property.' 'Whether the Bankrupt had agreed before bankruptcy to assign her interest in the North Ryde Property, or other properties, to Gerardo Macalindong for $50,000.' 'Whether payments made by Gerardo Macalindong to the Bankrupt were consideration for her interest in the North Ryde Property.' 'Whether trustees for sale should be appointed under s 66G of the Conveyancing Act 1919 (NSW).']

Ratio Decidendi

The Court was not persuaded that the alleged May 2007 arrangement existed or that the Bankrupt agreed to assign her interest in the North Ryde Property, or other properties, for $50,000. The evidence of payments beyond $32,431.85 was not credible, the statutory declarations did not reliably corroborate the alleged arrangement, and the Bankrupt's statement of affairs and later communications were inconsistent with any prior assignment. Accordingly, at the commencement of bankruptcy the Bankrupt remained the beneficial owner of a moiety in the North Ryde Property and the North Arm Cove Property, that interest vested in the Official Trustee, the cross-claim should be dismissed with costs,...

Court Disposition

The Court concluded that the cross-claim should be dismissed with costs and that orders should be made under s 66G of the Conveyancing Act 1919 (NSW), but deferred formal orders pending short minutes and any submissions on distribution of sale proceeds.

Orders

  • ["Direct that no later than 16 December 2016 the plaintiff bring in short minutes of order giving effect to the Court's conclusions." 'If there is any dispute as to the distribution of sale proceeds of the North Ryde Property, the short minutes are to provide a timetable for submissions on all outstanding questions.']