Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411

Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411

The appeal failed because the appellants had in effect consented to, or at least did not oppose, the orders made by the primary judge; the Official Trustee and the first appellant held the relevant properties as tenants in common in equal shares; the second appellant's interest had vested in the Official Trustee and he had no relevant standing; and no proprietary right, contractual obligation, fiduciary obligation or other recognised equitable basis was shown that would make the s 66G orders inequitable. Disputes about the administration of the bankrupt estate, quantification of the Official Trustee's costs and possible annulment of bankruptcy were matters for the Federal Court and did...

Jurisdiction
Australia
Judgment Date
18 December 2015
Procedural Posture
Appeal From Orders of the Supreme Court of New South Wales, Equity Division, Appointing Trustees for Sale Under S 66 G of the Conveyancing Act 1919 (nsw) / Court of Appeal Decision
Outcome
Appeal dismissed.
Legal Topics
['statutory Trust for Sale' 'co Ownership' 'tenants in Common' 'bankrupt Estate' 'annulment of Bankruptcy' "trustee's Costs and Expenses" 'discretion Under S 66 G of the Conveyancing Act 1919 (nsw)' 'indemnity Costs']
['real Property' 'bankruptcy' 'equity' 'civil Procedure'] ['statutory Trust for Sale' 'co Ownership' 'tenants in Common' 'bankrupt Estate' 'annulment of Bankruptcy' "trustee's Costs and Expenses" 'discretion Under S 66 G of the Conveyancing Act 1919 (nsw)' 'indemnity Costs']

Case Brief

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Procedural Posture

Appeal From Orders of the Supreme Court of New South Wales, Equity Division, Appointing Trustees for Sale Under S 66 G of the Conveyancing Act 1919 (nsw) / Court of Appeal Decision

Legal Issues

  1. 1 ['Whether the primary judge erred in making orders under s 66G of the Conveyancing Act 1919 (NSW) while Federal Court proceedings under s 179 of the Bankruptcy Act 1966 (Cth) were pending.' "Whether the Court should refuse, defer or stay s 66G orders because the costs and expenses claimed by the Official Trustee had not been finally quantified and might affect annulment of the second appellant's bankruptcy." 'Whether the making of s 66G orders was inconsistent with any proprietary right or contractual or fiduciary obligation.' 'Whether the second appellant, whose interest in the properties had vested in the Official Trustee, had standing in the s 66G proceedings or on appeal.' 'Whether the appeal warranted indemnity costs because it lacked merit.']

Ratio Decidendi

The appeal failed because the appellants had in effect consented to, or at least did not oppose, the orders made by the primary judge; the Official Trustee and the first appellant held the relevant properties as tenants in common in equal shares; the second appellant's interest had vested in the Official Trustee and he had no relevant standing; and no proprietary right, contractual obligation, fiduciary obligation or other recognised equitable basis was shown that would make the s 66G orders inequitable. Disputes about the administration of the bankrupt estate, quantification of the Official Trustee's costs and possible annulment of bankruptcy were matters for the Federal Court and did...

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.' "Direct the appellants on or before 5 February 2016 to file any submissions they wish to make as to why an order that they pay the first respondent's costs of the appeal on an indemnity basis should not be made. In the event that no such submissions are filed by that date, an order for indemnity...