Official Trustee in Bankruptcy v. Sharrment Pty Ltd & Ors [1987] FCA 351

Official Trustee in Bankruptcy v. Sharrment Pty Ltd & Ors [1987] FCA 351

The estate funds in dispute formed part of the divisible property of the late Mr Wynyard's bankrupt estate, as the transactions creating the appearance of liabilities and trust assets were shams, and the funds used for purchasing 'The Chase' were in reality Mr Wynyard's own and held on resulting trust for him; alternatively, settlements made post-1980 would be void against the trustee under s.120 of the Bankruptcy Act, as the respondents did not prove the statutory exceptions.

Parties
Applicant: The Official Trustee in Bankruptcy; First Respondent: Sharrment Pty Limited; Second Respondent: Lee Wynyard; Third Respondent: Mark Wynyard; Fourth Respondent: Australian Bank Limited; Fifth Respondent: Lorreine Claire Wynyard; Sixth Respondent: Macquarie Bank Limited; Seventh Respondent: Eldercon Pty Limited; Eighth Respondent: Robert Ian Grant as Representative of partners of Sly & Russell; Ninth Respondent: Seyta Pty Limited
Jurisdiction
Australia
Judgment Date
08 July 1987
Procedural Posture
Bankruptcy Administration of Deceased Estate / Judgment After Hearing of Application
Outcome
Declarations and orders as sought by applicant granted.
Legal Topics
Resulting Trusts, Settlements Under Bankruptcy Act, Deceased Estates, Disposition of Property
Bankruptcy Equity Trusts Resulting Trusts Settlements Under Bankruptcy Act Deceased Estates Disposition of Property

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Parties

The Official Trustee in Bankruptcy

Applicant

Sharrment Pty Limited

First Respondent

Lee Wynyard

Second Respondent

Mark Wynyard

Third Respondent

Australian Bank Limited

Fourth Respondent

Lorreine Claire Wynyard

Fifth Respondent

Macquarie Bank Limited

Sixth Respondent

Eldercon Pty Limited

Seventh Respondent

Robert Ian Grant as Representative of partners of Sly & Russell

Eighth Respondent

Seyta Pty Limited

Ninth Respondent

Procedural Posture

Bankruptcy Administration of Deceased Estate / Judgment After Hearing of Application

Legal Issues

  1. 1 Whether proceeds of sale of realty form part of deceased's bankrupt estate
  2. 2 Whether realty held upon resulting trust for deceased
  3. 3 Whether deceased made settlement of purchase price within five years before death

Ratio Decidendi

The estate funds in dispute formed part of the divisible property of the late Mr Wynyard's bankrupt estate, as the transactions creating the appearance of liabilities and trust assets were shams, and the funds used for purchasing 'The Chase' were in reality Mr Wynyard's own and held on resulting trust for him; alternatively, settlements made post-1980 would be void against the trustee under s.120 of the Bankruptcy Act, as the respondents did not prove the statutory exceptions.

Court Disposition

Declarations and orders as sought by applicant granted.

Orders

  • It is declared that the funds described in the Schedule form part of the divisible property of the estate of the late John Walker Wynyard within the meaning of s.249 of the Bankruptcy Act 1966.
  • The fourth respondent (Australian Bank Limited) to pay to the applicant the monies comprising the funds described in paragraphs A and C of the Schedule.