Re in the Estate of Roma Bivone Ex Parte Official Trustee in Bankruptcy & Ors Re in the Estate of Roma Bivone Ex Parte Domenic Christopher & Ors [1997] FCA 465

Re in the Estate of Roma Bivone Ex Parte Official Trustee in Bankruptcy & Ors Re in the Estate of Roma Bivone Ex Parte Domenic Christopher & Ors [1997] FCA 465

The Court rejected the evidence of the bankrupt and Mr Barbaro except where independently supported, found that there was no oral contract for sale and purchase in 1991, found that the $4,000 paid by Mr Barbaro to Bonnins on 15 February 1991 was a gift and not part payment of the purchase price, and inferred from the timing and circumstances that the State Taxation Office correspondence and memorandum of transfer were an attempt to prevent the property from becoming available to the bankrupt's creditors. The memorandum of transfer was therefore void as against the Official Trustee, who was entitled to the proceeds of sale of the bankrupt's one third interest.

Jurisdiction
Australia
Judgment Date
30 May 1997
Procedural Posture
Bankruptcy Applications Concerning Whether a Memorandum of Transfer Was Void Against the Official Trustee Under S 121 of the Bankruptcy Act 1966 (cth) / Final Hearing; Reasons for Judgment and Orders Dated 30 May 1997
Outcome
The Official Trustee's application was allowed and the respondents' application was dismissed.
Legal Topics
['transfer to Defeat Creditors' 'beneficial Ownership' 'oral Contract for Sale and Purchase' 'burden of Proof' 'bankrupt Estate']
['bankruptcy' 'property'] ['transfer to Defeat Creditors' 'beneficial Ownership' 'oral Contract for Sale and Purchase' 'burden of Proof' 'bankrupt Estate']

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Procedural Posture

Bankruptcy Applications Concerning Whether a Memorandum of Transfer Was Void Against the Official Trustee Under S 121 of the Bankruptcy Act 1966 (cth) / Final Hearing; Reasons for Judgment and Orders Dated 30 May 1997

Legal Issues

  1. 1 ["Whether there was an oral contract in 1991 by which Domenic Christopher Barbaro and Antonia Bivone purchased Roma Bivone's one third interest in the property for $5,000." 'Whether the purchase price was paid in 1991 as alleged by the respondents.' 'Whether the memorandum of transfer dated 15 March 1995 was void against the Official Trustee under s 121 of the Bankruptcy Act 1966 (Cth).' "Whether the Official Trustee or the respondents were entitled to $22,190.87, being the proceeds of sale of the bankrupt's one third interest in the property."]

Ratio Decidendi

The Court rejected the evidence of the bankrupt and Mr Barbaro except where independently supported, found that there was no oral contract for sale and purchase in 1991, found that the $4,000 paid by Mr Barbaro to Bonnins on 15 February 1991 was a gift and not part payment of the purchase price, and inferred from the timing and circumstances that the State Taxation Office correspondence and memorandum of transfer were an attempt to prevent the property from becoming available to the bankrupt's creditors. The memorandum of transfer was therefore void as against the Official Trustee, who was entitled to the proceeds of sale of the bankrupt's one third interest.

Court Disposition

The Official Trustee's application was allowed and the respondents' application was dismissed.

Orders

  • ['Declaration that the memorandum of transfer dated 15 March 1995 between the bankrupt Roma Bivone as transferor and Domenic Christopher Barbaro and Antonia Bivone as transferees is void as against the Official Trustee in Bankruptcy.' "Declaration that the Official Trustee in Bankruptcy is entitled to the sum of...