Fodare Pty Limited v Official Trustee in Bankruptcy [2000] FCA 1721

Fodare Pty Limited v Official Trustee in Bankruptcy [2000] FCA 1721

The appellants' application to admit further evidence on appeal fails as it was not raised at first instance, was not explained adequately for previous omission, and is inconsistent with earlier positions; the payment of $87,500 was a void disposition as against the Official Trustee and judgment (with interest) and a charge over the property was appropriate under bankruptcy law.

Parties
First Appellant: Fodare Pty Limited; Second Appellant: Doris Emily Elizabeth Miller; Third Appellant: Kathleen Anne Hirtzell; Fourth Appellant: Kevin Tubb; First Respondent: Official Trustee in Bankruptcy; Second Respondent: Official Receiver
Jurisdiction
Australia
Judgment Date
29 November 2000
Procedural Posture
Appeal / Judgment After Hearing and Further Consideration
Outcome
Appeal upheld in part, declarations of primary judge set aside, payment of $87,500 declared void, judgment for Official Trustee with interest and charge on property, modification of costs orders, no order as to appeal costs.
Legal Topics
Void Settlement, Adducing Further Evidence on Appeal, Interest Entitlement, Charge on Property, Finality of Litigation, Necessary Parties for Costs
Bankruptcy Civil Procedure Costs Void Settlement Adducing Further Evidence on Appeal Interest Entitlement Charge on Property Finality of Litigation +1 more

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Parties

Fodare Pty Limited

First Appellant

Doris Emily Elizabeth Miller

Second Appellant

Kathleen Anne Hirtzell

Third Appellant

Kevin Tubb

Fourth Appellant

Official Trustee in Bankruptcy

First Respondent

Official Receiver

Second Respondent

Procedural Posture

Appeal / Judgment After Hearing and Further Consideration

Legal Issues

  1. 1 Whether further evidence should be admitted on appeal under Order 52 r 36
  2. 2 Whether payment was a void disposition under s 120(1) Bankruptcy Act 1966 (Cth)
  3. 3 Entitlement to interest on the judgment sum

Ratio Decidendi

The appellants' application to admit further evidence on appeal fails as it was not raised at first instance, was not explained adequately for previous omission, and is inconsistent with earlier positions; the payment of $87,500 was a void disposition as against the Official Trustee and judgment (with interest) and a charge over the property was appropriate under bankruptcy law.

Court Disposition

Appeal upheld in part, declarations of primary judge set aside, payment of $87,500 declared void, judgment for Official Trustee with interest and charge on property, modification of costs orders, no order as to appeal costs.

Orders

  • The appeal be upheld and the declarations made by the primary judge be set aside.
  • The payment of $87,500 on 13 April 1989 from Doris Emily Elizabeth Miller to Fodare Pty Limited be declared void as against the Official Trustee in Bankruptcy.