Birdseye v Sheahan [2002] FCA 1319

Birdseye v Sheahan [2002] FCA 1319

Requirement under s 139D(1)(d) was not met as there was no evidence the appellant used or derived a benefit from the chose in action (debt owed by Mrs Birdseye); thus, the application under Division 4A fails. The court did not err in granting a charge/lien over Trust property limited to the tax debt.

Parties
Appellant: Nicholas Guy Birdseye; Respondent: John Sheahan
Jurisdiction
Australia
Judgment Date
25 October 2002
Procedural Posture
Appeal From Federal Magistrate / Final Judgment
Outcome
Appeal allowed in part
Legal Topics
Trust Property, Remuneration, Chose in Action, Lien, Examinable Period, Part VI Division 4 a Bankruptcy Act
Bankruptcy Trust Property Remuneration Chose in Action Lien Examinable Period Part VI Division 4 a Bankruptcy Act

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Parties

Nicholas Guy Birdseye

Appellant

John Sheahan

Respondent

Procedural Posture

Appeal From Federal Magistrate / Final Judgment

Legal Issues

  1. 1 What is the correct examinable period under s 139D?
  2. 2 Was the appellant's remuneration substantially less than arm's length?
  3. 3 Did the Trust acquire an estate in particular property (chose in action)?

Ratio Decidendi

Requirement under s 139D(1)(d) was not met as there was no evidence the appellant used or derived a benefit from the chose in action (debt owed by Mrs Birdseye); thus, the application under Division 4A fails. The court did not err in granting a charge/lien over Trust property limited to the tax debt.

Court Disposition

Appeal allowed in part

Orders

  • Paragraph 1 of the orders made on 22 March 2002 in application No AZ 215 of 2001 be set aside.
  • Paragraph 2 of those orders amended: 'The applicant has a charge or right of lien over the property of the Nicholas Birdseye Family Trust in respect of the debt due to the Deputy Commissioner of Taxation in the sum of $47,557.03.'