Burns, R.J.F. & Anor v. Lorac Mining Pty Ltd [1985] FCA 63

Burns, R.J.F. & Anor v. Lorac Mining Pty Ltd [1985] FCA 63

The deed of assignment was invalid because its execution was attested by a party to that deed (the first applicant), contrary to s.216(2) of the Bankruptcy Act. This was a fundamental defect, not merely formal or insubstantial, and rendered the deed wholly ineffective to vest any title or standing in the applicants. The invalidity meant the applicants had no standing to claim the proceeds of sale, and the application must be dismissed.

Parties
Applicant: Robert John Fred Burns; Applicant: Peter Ivan Felix Geroff; Respondent: Lorac Mining Pty. Limited
Jurisdiction
Australia
Judgment Date
06 March 1985
Procedural Posture
Bankruptcy Application / Final Decision at First Instance
Outcome
Application, as amended, dismissed with costs.
Legal Topics
Deed of Assignment, Requirements for Attestation, Jurisdiction of Court Under Bankruptcy Act, Validity of Deed Under S.216 and S.222 Bankruptcy Act
Bankruptcy Deed of Assignment Requirements for Attestation Jurisdiction of Court Under Bankruptcy Act Validity of Deed Under S.216 and S.222 Bankruptcy Act

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Parties

Robert John Fred Burns

Applicant

Peter Ivan Felix Geroff

Applicant

Lorac Mining Pty. Limited

Respondent

Procedural Posture

Bankruptcy Application / Final Decision at First Instance

Legal Issues

  1. 1 Whether a deed of assignment under Part X of the Bankruptcy Act is valid if attested by a party to the deed and not an independent witness
  2. 2 Whether application to void the deed under s.222 of the Bankruptcy Act is necessary for invalidity
  3. 3 Whether the applicants had title to sue relying on a deed not compliant with s.216(2)

Ratio Decidendi

The deed of assignment was invalid because its execution was attested by a party to that deed (the first applicant), contrary to s.216(2) of the Bankruptcy Act. This was a fundamental defect, not merely formal or insubstantial, and rendered the deed wholly ineffective to vest any title or standing in the applicants. The invalidity meant the applicants had no standing to claim the proceeds of sale, and the application must be dismissed.

Court Disposition

Application, as amended, dismissed with costs.

Orders

  • Application, as amended, dismissed.
  • Discharge the existing injunction.