Ramsay (Trustee) v Upson [2016] FCA 1546

Ramsay (Trustee) v Upson [2016] FCA 1546

The trustee in bankruptcy is entitled to summary judgment for possession of the Timor Avenue properties. Even accepting some property was acquired using protected money, the properties were jointly owned and half is presumed as a gift to the wife; the trustee may sell the properties and account to the bankrupt for the relevant attributable portion. The respondents’ duress and protected money arguments lacked reasonable prospects and did not demonstrate a triable issue.

Parties
First Applicant: Hugh David Ramsay as Trustee of the Bankrupt Estate of Robert James Upson; Second Applicant: Hugh David Ramsay as Trustee of the Bankrupt Estate of Beryl Joy Upson; First Respondent: Robert James Upson; Second Respondent: Beryl Joy Upson (also known as Sheryl Joy Upson)
Jurisdiction
Australia
Judgment Date
20 December 2016
Procedural Posture
Application for Summary Judgment / Judgment on Interlocutory Application for Summary Judgment
Outcome
Summary judgment for the applicant; orders for possession and costs granted against both respondents.
Legal Topics
Summary Judgment, Vacant Possession, Protected Money Under Bankruptcy, Duress and Settlement Agreements, Division of Property in Bankruptcy
Bankruptcy Practice and Procedure Summary Judgment Vacant Possession Protected Money Under Bankruptcy Duress and Settlement Agreements Division of Property in Bankruptcy

Case Brief

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Parties

Hugh David Ramsay as Trustee of the Bankrupt Estate of Robert James Upson

First Applicant

Hugh David Ramsay as Trustee of the Bankrupt Estate of Beryl Joy Upson

Second Applicant

Robert James Upson

First Respondent

Beryl Joy Upson (also known as Sheryl Joy Upson)

Second Respondent

Procedural Posture

Application for Summary Judgment / Judgment on Interlocutory Application for Summary Judgment

Legal Issues

  1. 1 Whether the respondents had a reasonable prospect of successfully defending the proceeding for vacant possession of real property by the trustee in bankruptcy
  2. 2 Whether the Timor Avenue properties were purchased with ‘protected money’ under s 116(2)(g) Bankruptcy Act 1966 (Cth) and therefore not divisible among creditors
  3. 3 Whether the deed of settlement signed by the respondents was void for duress

Ratio Decidendi

The trustee in bankruptcy is entitled to summary judgment for possession of the Timor Avenue properties. Even accepting some property was acquired using protected money, the properties were jointly owned and half is presumed as a gift to the wife; the trustee may sell the properties and account to the bankrupt for the relevant attributable portion. The respondents’ duress and protected money arguments lacked reasonable prospects and did not demonstrate a triable issue.

Court Disposition

Summary judgment for the applicant; orders for possession and costs granted against both respondents.

Orders

  • Judgment for the whole claim against both respondents pursuant to r 26.01(1)(e) Federal Court Rules 2011 (Cth)
  • Respondents to vacate Lot 259 and Lot 260 (73 and 71 Timor Avenue, Loganholme, QLD) within 21 days under s 30 and s 77 Bankruptcy Act 1966 (Cth)