The Official Trustee in Bankruptcy v. Alvaro, G. & Ors [1994] FCA 809

The Official Trustee in Bankruptcy v. Alvaro, G. & Ors [1994] FCA 809

The Court found that the applicant did not establish that the relevant dispositions of property to family trusts or to children were made with intent to defraud creditors, nor was there evidence of sham trusts, retention of benefit, or resulting trusts. The presumption of advancement applied to gifts made to...

Source-derived case information.

Parties
Applicant: The Official Trustee in Bankruptcy; Respondent: Giuseppe Alvaro; Respondent: Girolama Alvaro; Respondent: Paul Alvaro; Respondent: Carmine Alvaro; Respondent: Combran Pty Ltd; Respondent: Rita Alvaro; Respondent: Maria Concetta Alvaro; Interested Party: Beneficiaries of the Giuseppe Alvaro Family Trust and the Alvaro Family Trust
Jurisdiction
Australia
Judgment Date
31 October 1994
Procedural Posture
Bankruptcy Application / Final Judgment
Outcome
application dismissed with costs
Legal Topics
Income Tax Evasion, Discretionary Family Trusts, Intent to Defraud Creditors, Resulting Trust, Sham Trusts, Gift, Presumption of Advancement
Bankruptcy Trusts Taxation Income Tax Evasion Discretionary Family Trusts Intent to Defraud Creditors Resulting Trust Sham Trusts +2 more

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Parties

The Official Trustee in Bankruptcy

Applicant

Giuseppe Alvaro

Respondent

Girolama Alvaro

Respondent

Paul Alvaro

Respondent

Carmine Alvaro

Respondent

Combran Pty Ltd

Respondent

Rita Alvaro

Respondent

Maria Concetta Alvaro

Respondent

Beneficiaries of the Giuseppe Alvaro Family Trust and the Alvaro Family Trust

Interested Party

Procedural Posture

Bankruptcy Application / Final Judgment

Legal Issues

  1. 1 Whether dispositions of property to trustees of family trusts were made with intent to defraud creditors under s.121 of the Bankruptcy Act
  2. 2 Whether certain property purchases and gifts constituted dispositions within meaning of s.121
  3. 3 Whether transfer and acquisition of listed properties involved retained benefit by the bankrupt or resulted in sham or resulting trusts

Ratio Decidendi

The Court found that the applicant did not establish that the relevant dispositions of property to family trusts or to children were made with intent to defraud creditors, nor was there evidence of sham trusts, retention of benefit, or resulting trusts. The presumption of advancement applied to gifts made to children. The evidence did not support the applicant's claim that Giuseppe Alvaro retained beneficial ownership through the trusts or gifts. The application was therefore dismissed.

Court Disposition

application dismissed with costs

Orders

  • The application be dismissed with costs including reserved costs.