Re Mondin, B.J. v. Ex parte Bradshaw, D.A. [1985] FCA 228

Re Mondin, B.J. v. Ex parte Bradshaw, D.A. [1985] FCA 228

At the date of the deed of arrangement, the debtor had a subsisting right to recover any excess provisional tax paid, which constituted existing property capable of assignment and thus formed part of the divisible property under the deed. The applicant is to hold the $866.24 as part of the debtor's divisible property.

Parties
Debtor: Basil John Mondin; Trustee (applicant): David Anthony Bradshaw
Jurisdiction
Australia
Judgment Date
07 June 1985
Procedural Posture
Application for Orders and Declarations / Final Determination
Outcome
Applicant's claim determined; order made to hold refund as divisible property.
Legal Topics
Divisible Property in Bankruptcy, Assignment of Chose in Action, Refund of Provisional Tax
Bankruptcy Taxation Divisible Property in Bankruptcy Assignment of Chose in Action Refund of Provisional Tax

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Parties

Basil John Mondin

Debtor

David Anthony Bradshaw

Trustee (applicant)

Procedural Posture

Application for Orders and Declarations / Final Determination

Legal Issues

  1. 1 Whether an entitlement to a tax refund constitutes property in the hands of a debtor at the time of execution of a deed of arrangement under Part X of the Bankruptcy Act 1966
  2. 2 Whether an entitlement to a tax refund under s.221YE of the Income Tax Assessment Act 1936 constitutes a chose in action which may be assigned prior to the issue of a tax assessment

Ratio Decidendi

At the date of the deed of arrangement, the debtor had a subsisting right to recover any excess provisional tax paid, which constituted existing property capable of assignment and thus formed part of the divisible property under the deed. The applicant is to hold the $866.24 as part of the debtor's divisible property.

Court Disposition

Applicant's claim determined; order made to hold refund as divisible property.

Orders

  • The applicant hold the sum of $866.24 as part of the divisible property of the debtor referred to in the schedule to the deed of arrangement.