Official Trustee in Bankuptcy v Fodare [2000] FCA 300

Official Trustee in Bankuptcy v Fodare [2000] FCA 300

The documentary evidence and bank records established that the bankrupt was the primary actor in the purchase and that the purchase moneys used from Kinconne and the joint account were her property. The respondents' alleged trusts were not supported by credible evidence, and no solvency evidence was led. The purchase by or for Fodare Pty Ltd of 92 Racecourse Avenue, Menangle Park for $195,000 was therefore a settlement of the bankrupt's property within 5 years before bankruptcy and was void against the trustee under section 120(2) of the Bankruptcy Act 1966 (Cth). Because the amount claimed in the section 139ZQ notice equalled the value of the property received, the notice was valid. The...

Jurisdiction
Australia
Judgment Date
17 March 2000
Procedural Posture
Bankruptcy Application by Trustee to Avoid a Settlement of Property and Related Application to Set Aside a Section 139 ZQ Notice / Final Judgment With Proceedings Listed for Final Orders
Outcome
Fodare Pty Ltd's application was dismissed with costs. The trustee's application and cross-claim were allowed insofar as they sought a declaration that the purchase of 92 Racecourse Avenue, Menangle Park by or for Fodare Pty Ltd was a settlement void against the Official Trustee in Bankruptcy. The respondents were...
Legal Topics
['void Settlements of Property' 'section 139 ZQ Notice' 'resulting Trusts' 'beneficial Ownership of Purchase Moneys' 'onus and Standard of Proof' 'delay and Limitation Period']
['bankruptcy' 'trusts' 'evidence' 'limitation of Actions'] ['void Settlements of Property' 'section 139 ZQ Notice' 'resulting Trusts' 'beneficial Ownership of Purchase Moneys' 'onus and Standard of Proof' 'delay and Limitation Period']

Case Brief

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Procedural Posture

Bankruptcy Application by Trustee to Avoid a Settlement of Property and Related Application to Set Aside a Section 139 ZQ Notice / Final Judgment With Proceedings Listed for Final Orders

Legal Issues

  1. 1 ['Whether the money used to purchase 92 Racecourse Avenue, Menangle Park was property of the bankrupt or was held by her on trust for family members and friends.' 'Whether Fodare Pty Ltd held the property on trust for the bankrupt or for alleged contributors to the purchase moneys.' 'Whether the purchase of the property by or for Fodare Pty Ltd was a settlement of property void against the trustee under section 120(2) of the Bankruptcy Act 1966 (Cth).' 'Whether the section 139ZQ notice served on Fodare Pty Ltd was valid.' "Whether the trustee's proceedings were statute barred by reason of delay."]

Ratio Decidendi

The documentary evidence and bank records established that the bankrupt was the primary actor in the purchase and that the purchase moneys used from Kinconne and the joint account were her property. The respondents' alleged trusts were not supported by credible evidence, and no solvency evidence was led. The purchase by or for Fodare Pty Ltd of 92 Racecourse Avenue, Menangle Park for $195,000 was therefore a settlement of the bankrupt's property within 5 years before bankruptcy and was void against the trustee under section 120(2) of the Bankruptcy Act 1966 (Cth). Because the amount claimed in the section 139ZQ notice equalled the value of the property received, the notice was valid. The...

Court Disposition

Fodare Pty Ltd's application was dismissed with costs. The trustee's application and cross-claim were allowed insofar as they sought a declaration that the purchase of 92 Racecourse Avenue, Menangle Park by or for Fodare Pty Ltd was a settlement void against the Official Trustee in Bankruptcy. The respondents were...

Orders

  • ['The application in proceedings NG 7005 of 1998 be dismissed with costs.' 'The application in proceedings NG 8446 of 1997 and the cross claim in proceedings NG 7005 of 1998 be allowed in so far as the application and cross claim sought a declaration that the purchase of the property of 92 Racecourse Avenue,...