Re Pope, Kerry Ambrose Ex Parte Jefferson, Philip Gregory & Anor v Pope, Sandra & Anor [1996] FCA 595

Re Pope, Kerry Ambrose Ex Parte Jefferson, Philip Gregory & Anor v Pope, Sandra & Anor [1996] FCA 595

No common intention constructive trust arose in 1982 or later because Kerry Ambrose Pope did not have, and the parties did not share, an intention that his beneficial interest in the Matipo Place property be held for Sandra Kay Pope. His later finance applications represented that he retained an interest. Accordingly, his half share of the Matipo Place sale proceeds remained his property. The payment of $46,250 at his direction to Suncorp for Sandra Kay Pope's purchase of the 19th Avenue property, and the $3,000 deposit paid by him for that purchase, were settlements made within two years of bankruptcy without consideration and were void against the trustees under s120 of the Bankruptcy...

Jurisdiction
Australia
Judgment Date
19 July 1996
Procedural Posture
Bankruptcy Application by Trustees Seeking Declarations and Recovery of Payments Alleged to Be Void Against the Trustees / Final Judgment
Outcome
Application allowed in part. The trustees failed on the claim that Sandra Kay Pope held a one half interest in the 19th Avenue property on trust, but succeeded in setting aside the $46,250 payment and the $3,000 deposit as void settlements under s120(1) of the Bankruptcy Act 1966 (Cth).
Legal Topics
['void Settlements Under S120 of the Bankruptcy Act 1966 (cth)' 'constructive Trust' 'jointly Owned Matrimonial Property' 'payments by Direction' 'insolvency and Bankruptcy Trustees']
['bankruptcy' 'trusts' 'property Law'] ['void Settlements Under S120 of the Bankruptcy Act 1966 (cth)' 'constructive Trust' 'jointly Owned Matrimonial Property' 'payments by Direction' 'insolvency and Bankruptcy Trustees']

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 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Bankruptcy Application by Trustees Seeking Declarations and Recovery of Payments Alleged to Be Void Against the Trustees / Final Judgment

Legal Issues

  1. 1 ['Whether Sandra Kay Pope held a one half share or interest in the 19th Avenue property on trust for the trustees of the bankrupt estate.' 'Whether the payment of $46,250 to Suncorp on or about 27 August 1993 was a settlement by the bankrupt upon Sandra Kay Pope and void against the trustees under s120(1) of the Bankruptcy Act 1966 (Cth).' 'Whether a common intention constructive trust arose in 1982 so that Kerry Ambrose Pope held his interest in the Matipo Place property on trust for Sandra Kay Pope.' 'Whether payments totalling $5,397, including the $3,000 deposit, were void against the trustees under s120 or s121 of the Bankruptcy Act 1966 (Cth).']

Ratio Decidendi

No common intention constructive trust arose in 1982 or later because Kerry Ambrose Pope did not have, and the parties did not share, an intention that his beneficial interest in the Matipo Place property be held for Sandra Kay Pope. His later finance applications represented that he retained an interest. Accordingly, his half share of the Matipo Place sale proceeds remained his property. The payment of $46,250 at his direction to Suncorp for Sandra Kay Pope's purchase of the 19th Avenue property, and the $3,000 deposit paid by him for that purchase, were settlements made within two years of bankruptcy without consideration and were void against the trustees under s120 of the Bankruptcy...

Court Disposition

Application allowed in part. The trustees failed on the claim that Sandra Kay Pope held a one half interest in the 19th Avenue property on trust, but succeeded in setting aside the $46,250 payment and the $3,000 deposit as void settlements under s120(1) of the Bankruptcy Act 1966 (Cth).

Orders

  • ['The Court declared that the payment of $46,250 by the bankrupt to Suncorp Building Society on or about 27 August 1993 was made for and on behalf of the first respondent to enable her to acquire the property and constituted a settlement by the bankrupt upon the first respondent, void as against the applicants by...