Mennigel, Heinrich Oswald Ex Parte the Debtor (applicant) Re Mannigel, Carolyn Nancy & Mannigel, Gunther Henry Frederick [1979] FCA 153

Mennigel, Heinrich Oswald Ex Parte the Debtor (applicant) Re Mannigel, Carolyn Nancy & Mannigel, Gunther Henry Frederick [1979] FCA 153

The evidence established that repayments on the mortgage for the house were made by the company, not the bankrupt, and the property was purchased in the bankrupt’s name due to the bank’s lending policy. No intention was found that the bankrupt own the house beneficially; rather, it was held upon trust for the company. Consequently, the fund is not a divisible asset in the bankrupt estate and must be paid to the company.

Parties
Applicant: William Edward Andrew; First Respondent: Liberty Mortgage Underwriters (S.A.) Pty. Limited; Second Respondent: D.J. Evans; Second Respondent: P.D. Murray; Bankrupt: Ronald Barnett Hyams
Jurisdiction
Australia
Judgment Date
03 December 1979
Procedural Posture
Bankruptcy Proceeding / Judgment After Application for Declaration and Payment Order
Outcome
Application by trustee dismissed; declarations granted to respondent.
Legal Topics
Trusts, Divisible Assets, Resulting Trust
Bankruptcy Trusts Divisible Assets Resulting Trust

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Parties

William Edward Andrew

Applicant

Liberty Mortgage Underwriters (S.A.) Pty. Limited

First Respondent

D.J. Evans

Second Respondent

P.D. Murray

Second Respondent

Ronald Barnett Hyams

Bankrupt

Procedural Posture

Bankruptcy Proceeding / Judgment After Application for Declaration and Payment Order

Legal Issues

  1. 1 Whether sum held in joint names is a divisible asset in the bankrupt estate
  2. 2 Whether property was held on trust for respondent company or beneficially for bankrupt

Ratio Decidendi

The evidence established that repayments on the mortgage for the house were made by the company, not the bankrupt, and the property was purchased in the bankrupt’s name due to the bank’s lending policy. No intention was found that the bankrupt own the house beneficially; rather, it was held upon trust for the company. Consequently, the fund is not a divisible asset in the bankrupt estate and must be paid to the company.

Court Disposition

Application by trustee dismissed; declarations granted to respondent.

Orders

  • It is declared the sum of $16,699.12 (plus accrued interest) held by the Hindmarsh Building Society in the joint names of the bankrupt and second respondents is not a divisible asset in the bankrupt estate.
  • It is declared the said sum is held by the Society upon trust for the first respondent.