Dixon v Raffaele [1999] FCA 337

Dixon v Raffaele [1999] FCA 337

The respondent failed to prove that the bankrupt was solvent at the time of the no-consideration transfer. The evidence did not establish that bank balances or shares were beneficially owned by or available to the bankrupt, superannuation benefits were not assets that could yield cash at the relevant time, and there was no real likelihood of access to the alleged $30,000 loan. Because the respondent did not discharge the onus under s 120(1), the transfer was void against the applicant and the applicant was entitled to the relief sought.

Jurisdiction
Australia
Judgment Date
09 March 1999
Procedural Posture
Application by Trustee of Bankrupt Estate Alleging Invalidity of a Transfer of Property Under the Bankruptcy Act 1966 / Ex Tempore Reasons for Judgment and Final Orders
Outcome
Application allowed; declaration and transfer order made; respondent ordered to pay costs; liberty to apply granted.
Legal Topics
['void Transfer of Property' 'solvency' 'trustee in Bankruptcy' 'no Consideration' 'onus of Proof']
['bankruptcy' 'property'] ['void Transfer of Property' 'solvency' 'trustee in Bankruptcy' 'no Consideration' 'onus of Proof']

Case Brief

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Procedural Posture

Application by Trustee of Bankrupt Estate Alleging Invalidity of a Transfer of Property Under the Bankruptcy Act 1966 / Ex Tempore Reasons for Judgment and Final Orders

Legal Issues

  1. 1 ["Whether the bankrupt's transfer of her joint interest in the Five Dock property to the respondent for no consideration was void against the applicant under s 120(1) of the Bankruptcy Act 1966." 'Whether the respondent proved that the bankrupt was solvent at the time of the transfer within s 5(2) of the Bankruptcy Act 1966.' 'Whether the respondent should be granted an adjournment to re-open his case to seek evidence from the bankrupt.']

Ratio Decidendi

The respondent failed to prove that the bankrupt was solvent at the time of the no-consideration transfer. The evidence did not establish that bank balances or shares were beneficially owned by or available to the bankrupt, superannuation benefits were not assets that could yield cash at the relevant time, and there was no real likelihood of access to the alleged $30,000 loan. Because the respondent did not discharge the onus under s 120(1), the transfer was void against the applicant and the applicant was entitled to the relief sought.

Court Disposition

Application allowed; declaration and transfer order made; respondent ordered to pay costs; liberty to apply granted.

Orders

  • ['The applicant in his capacity as trustee of the estate of Tina Raffaele is the legal and beneficial owner of a half interest as joint tenant in the property known as 55 Wymston Parade, Five Dock and being the property comprised in Folio Identifier 6/26615.' 'The interest in the property be transferred from the...