Verge (Trustee), in the matter of Underdown (deceased) (a bankrupt) v Fazio [2013] FCA 18

Verge (Trustee), in the matter of Underdown (deceased) (a bankrupt) v Fazio [2013] FCA 18

The transfer from the deceased to Mr Fazio was void against the trustees under s 120 and s 121 of the Bankruptcy Act 1966 (Cth) because there was no consideration and the transfer's purpose was to defeat creditors. Mr Fazio failed to comply with the valid s 139ZQ notice, entitling the trustees to an order for sale and ancillary relief.

Parties
Applicants: Evan Robert Verge and George Aubrey Lopez as Trustees of the Estate of Samantha Underdown (deceased) (a bankrupt); First Respondent: Arturo Salvatore Fazio; Second Respondent: Registrar of Titles
Jurisdiction
Australia
Judgment Date
17 January 2013
Procedural Posture
Bankruptcy Application / Judgment
Outcome
Orders for sale of the property and ancillary relief in favour of the trustees, with final orders to be made after trustees file further proposed orders and mortgagee has opportunity to be heard. Costs awarded to trustees.
Legal Topics
Transfer of Property to Defeat Creditors, Administration of Bankrupt Estate, Voidable Transactions, Trustee's Power of Sale
Bankruptcy Transfer of Property to Defeat Creditors Administration of Bankrupt Estate Voidable Transactions Trustee's Power of Sale

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 8 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Evan Robert Verge and George Aubrey Lopez as Trustees of the Estate of Samantha Underdown (deceased) (a bankrupt)

Applicants

Arturo Salvatore Fazio

First Respondent

Registrar of Titles

Second Respondent

Procedural Posture

Bankruptcy Application / Judgment

Legal Issues

  1. 1 Whether the transfer of property by the deceased to the respondent husband was void for lack of consideration and intention to defeat creditors
  2. 2 Whether trustees are entitled to an order for sale of property or setting aside of transfer
  3. 3 Effect of non-compliance with s 139ZQ notice

Ratio Decidendi

The transfer from the deceased to Mr Fazio was void against the trustees under s 120 and s 121 of the Bankruptcy Act 1966 (Cth) because there was no consideration and the transfer's purpose was to defeat creditors. Mr Fazio failed to comply with the valid s 139ZQ notice, entitling the trustees to an order for sale and ancillary relief.

Court Disposition

Orders for sale of the property and ancillary relief in favour of the trustees, with final orders to be made after trustees file further proposed orders and mortgagee has opportunity to be heard. Costs awarded to trustees.

Orders

  • Within 10 days the applicants file a further minute of orders reflecting these reasons for judgment.
  • Liberty to the mortgagee to apply within 10 days after service of the trustees' proposed orders.