Embedded Claims Pty Ltd v Litigation Finance (Australia) Pty Ltd [2023] FCAFC 30

Embedded Claims Pty Ltd v Litigation Finance (Australia) Pty Ltd [2023] FCAFC 30

The Court held that the evidence did not establish on the balance of probabilities that Mrs Kapp lawfully transferred the 50 shares in Embedded Claims Pty Ltd to Mr Kapp beneficially. The alternative possibilities indicated by the evidence were either that corporate records did not reflect an actual lawful transfer, or that any transfer occurred without regard to trust obligations, so Mr Kapp could not take beneficial ownership. There was contrary evidence to the statutory and evidentiary presumptions claimed by the appellants. The appeal was dismissed.

Jurisdiction
Australia
Judgment Date
09 March 2023
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal dismissed
Legal Topics
['share Transfer' 'trust Property' 'rectification of Registers' 'beneficial Ownership' 'bankruptcy Vesting']
['corporations'] ['share Transfer' 'trust Property' 'rectification of Registers' 'beneficial Ownership' 'bankruptcy Vesting']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 ['Whether a transfer of shares in Embedded Claims Pty Ltd to Mr Kapp beneficially occurred on 26 November 2020' 'Whether the shares vested in trustees in bankruptcy under s 58(1)(b) Bankruptcy Act 1966 (Cth)' 'Whether the primary judge erred in not drawing inferences from ASIC records and corporate forms']

Ratio Decidendi

The Court held that the evidence did not establish on the balance of probabilities that Mrs Kapp lawfully transferred the 50 shares in Embedded Claims Pty Ltd to Mr Kapp beneficially. The alternative possibilities indicated by the evidence were either that corporate records did not reflect an actual lawful transfer, or that any transfer occurred without regard to trust obligations, so Mr Kapp could not take beneficial ownership. There was contrary evidence to the statutory and evidentiary presumptions claimed by the appellants. The appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal be dismissed.' 'There be no order as to costs.']