Leroy v Koutavas, in the matter of Koutavas (No 2) [2017] FCA 912

Leroy v Koutavas, in the matter of Koutavas (No 2) [2017] FCA 912

Mrs Koutavas was the registered proprietor and was subject to consent orders requiring transfer of a half interest in the property to the trustee in bankruptcy, so she held a half share as tenant in common on trust for the bankrupt estate and that interest vested in the applicant. That equitable co-ownership supported appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW). The loans by Mr and Mrs Fildissis arose from an oral agreement and did not give them an estate or interest in the property, so the caveat should be withdrawn. The orders could bind the deceased second respondent's estate under r 9.24(2) of the Federal Court Rules 2011 (Cth).

Jurisdiction
Australia
Judgment Date
09 August 2017
Procedural Posture
Bankruptcy and Insolvency Proceeding Concerning Declarations of Interest in Land, Appointment of Trustees for Sale, and Withdrawal of Caveat / Judgment and Consent Orders
Outcome
Orders and declarations made by consent of the applicant, the first respondent and the third respondent, including declarations of the bankrupt estate's one half interest, appointment of trustees for sale, withdrawal of caveat, a stay until 5 pm on 15 September 2017, and adjournment for mention.
Legal Topics
["trustee in Bankruptcy's Interest in Real Property" 'tenancy in Common' 'statutory Trust for Sale' 'withdrawal of Caveat' 'application of New South Wales Laws in Federal Jurisdiction']
['bankruptcy and Insolvency' 'real Property' 'federal Jurisdiction'] ["trustee in Bankruptcy's Interest in Real Property" 'tenancy in Common' 'statutory Trust for Sale' 'withdrawal of Caveat' 'application of New South Wales Laws in Federal Jurisdiction']

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Procedural Posture

Bankruptcy and Insolvency Proceeding Concerning Declarations of Interest in Land, Appointment of Trustees for Sale, and Withdrawal of Caveat / Judgment and Consent Orders

Legal Issues

  1. 1 ['Whether the first respondent held a one half share in the Land as tenant in common for the benefit of the bankrupt estate of Harry Koutavas.' "Whether the bankrupt estate's interest in the Land vested in the applicant pursuant to s 58 of the Bankruptcy Act 1966 (Cth)." 'Whether trustees should be appointed for sale of the Land under s 66G of the Conveyancing Act 1919 (NSW).' 'Whether the caveat lodged by the second and third respondents should be withdrawn on the basis that they had no estate or interest in the Land.' 'Whether orders in the proceeding could bind the estate of the deceased second respondent.']

Ratio Decidendi

Mrs Koutavas was the registered proprietor and was subject to consent orders requiring transfer of a half interest in the property to the trustee in bankruptcy, so she held a half share as tenant in common on trust for the bankrupt estate and that interest vested in the applicant. That equitable co-ownership supported appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW). The loans by Mr and Mrs Fildissis arose from an oral agreement and did not give them an estate or interest in the property, so the caveat should be withdrawn. The orders could bind the deceased second respondent's estate under r 9.24(2) of the Federal Court Rules 2011 (Cth).

Court Disposition

Orders and declarations made by consent of the applicant, the first respondent and the third respondent, including declarations of the bankrupt estate's one half interest, appointment of trustees for sale, withdrawal of caveat, a stay until 5 pm on 15 September 2017, and adjournment for mention.

Orders

  • ['Pursuant to s 30 of the Bankruptcy Act 1966 (Cth), the First Respondent holds the title to the land in certificate of title folio identifier 26/84988, being the land known as 47 Staples Street, Kingsgrove in the State of New South Wales, on trust as to a one half share as tenant in common for the benefit of the...