Wall; ex parte The Official Receiver [1979] FCA 183

Wall; ex parte The Official Receiver [1979] FCA 183

The critical conversations between the bankrupt and the first and third respondents did not create a trust or charge over the property or its proceeds; there was no intention to create such a trust, only a debtor-creditor relationship. The first and third respondents are established as unsecured creditors, not beneficiaries or chargees.

Parties
Bankrupt: Rodney D'Arcy Wall; Applicant: The Official Receiver; First Respondent: Michael Ian Kemmis; Second Respondents: Anthony F. Moulton and Bruce F. Corben carrying on business as C. Don Service & Co.; Third Respondent: John Keith William Lowe
Jurisdiction
Australia
Judgment Date
13 August 1979
Procedural Posture
Application / Judgment
Outcome
Application granted in part
Legal Topics
Trusts, Debtor Creditor Relationship, Beneficial Ownership in Bankruptcy
Bankruptcy Trusts Debtor Creditor Relationship Beneficial Ownership in Bankruptcy

Case Brief

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Parties

Rodney D'Arcy Wall

Bankrupt

The Official Receiver

Applicant

Michael Ian Kemmis

First Respondent

Anthony F. Moulton and Bruce F. Corben carrying on business as C. Don Service & Co.

Second Respondents

John Keith William Lowe

Third Respondent

Procedural Posture

Application / Judgment

Legal Issues

  1. 1 Whether a trust was constituted over $18,628.06 being part proceeds of sale of land formerly owned by the bankrupt and held by the second respondents
  2. 2 Whether the relationship between the bankrupt and the first and third respondents was that of trustee-beneficiary or debtor-creditor

Ratio Decidendi

The critical conversations between the bankrupt and the first and third respondents did not create a trust or charge over the property or its proceeds; there was no intention to create such a trust, only a debtor-creditor relationship. The first and third respondents are established as unsecured creditors, not beneficiaries or chargees.

Court Disposition

Application granted in part

Orders

  • That at the commencement of his bankruptcy the bankrupt had a beneficial interest in the property being Lot 81 in deposited plan 26610, Soldier's Point Road, Salamander Bay, New South Wales.
  • That as at the date of the sequestration order against the estate of the bankrupt he was the beneficial owner of the sum of $18,628.06 held by the second respondents and representing part of the proceeds of sale by the first respondent of the property.