Hashenko v Gollant as Trustee for the Bankrupt Estate of White [2020] FCA 1836

Hashenko v Gollant as Trustee for the Bankrupt Estate of White [2020] FCA 1836

The bankruptcy was annulled because Mr White ought not to have presented his debtor's petition. On the balance of probabilities, he was solvent when the petition was presented, taking into account his ownership of the Cape Town and Florida properties and the approximate value of the Florida Property against credit card liabilities. Even if he had been insolvent, the petition ought not to have been presented because Mr White filed it for the collateral purpose of frustrating the giving effect to the Federal Circuit Court Consent Orders requiring transfer of his interest in the South Wentworthville Property to Ms Hashenko. His beneficial interest in that property had already passed to Ms...

Jurisdiction
Australia
Judgment Date
22 December 2020
Procedural Posture
Application for Annulment of Bankruptcy Pursuant to S 153 B of the Bankruptcy Act 1966 (cth) / Judgment After Hearing
Outcome
Application granted; the bankruptcy of Mr White was annulled pursuant to s 153B of the Bankruptcy Act 1966 (Cth).
Legal Topics
['annulment of Bankruptcy' "debtor's Petition" 'solvency' 'collateral Purpose and Abuse of Process' 'effect of Family Law Act Consent Orders on Property Interests' "trustee's Costs"]
['bankruptcy' 'family Law' 'insolvency' 'costs'] ['annulment of Bankruptcy' "debtor's Petition" 'solvency' 'collateral Purpose and Abuse of Process' 'effect of Family Law Act Consent Orders on Property Interests' "trustee's Costs"]

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Annulment of Bankruptcy Pursuant to S 153 B of the Bankruptcy Act 1966 (cth) / Judgment After Hearing

Legal Issues

  1. 1 ["Whether Mr White was solvent at the time he presented his debtor's petition." "Whether the debtor's petition ought not to have been presented or accepted because it was presented for a collateral purpose." "Whether the Consent Orders transferred Mr White's beneficial interest in the South Wentworthville Property to Ms Hashenko before bankruptcy." 'Whether annulling the bankruptcy was an appropriate exercise of discretion under s 153B of the Bankruptcy Act 1966 (Cth).' 'Who should bear the costs of the annulment proceeding and the administration of the bankrupt estate.']

Ratio Decidendi

The bankruptcy was annulled because Mr White ought not to have presented his debtor's petition. On the balance of probabilities, he was solvent when the petition was presented, taking into account his ownership of the Cape Town and Florida properties and the approximate value of the Florida Property against credit card liabilities. Even if he had been insolvent, the petition ought not to have been presented because Mr White filed it for the collateral purpose of frustrating the giving effect to the Federal Circuit Court Consent Orders requiring transfer of his interest in the South Wentworthville Property to Ms Hashenko. His beneficial interest in that property had already passed to Ms...

Court Disposition

Application granted; the bankruptcy of Mr White was annulled pursuant to s 153B of the Bankruptcy Act 1966 (Cth).

Orders

  • ['The bankruptcy of the second respondent is annulled pursuant to s 153B of the Bankruptcy Act 1966 (Cth).' "The second respondent pay the applicant's costs of and incidental to the proceeding." "The second respondent pay the first respondent's costs of and incidental to the proceeding and the costs of administering...