TRUSTS AND TRUSTEES –corporate trustee in liquidation – where liquidator assignedcompany’s causes of action against appellantsto respondents – whether assigning right, title and interest in causes of action to respondents is limited to the company’s right of indemnity against trust property and concomitant equitable lien – whether beneficiaries’ interests in claims against appellants were engrafted onto assigned claim –where assigned causes of action are causes of action of the company which it could advance in its own right but for the deed of assignment – where on the proper construction of deed of assignment the liquidator assigned to respondents entirety of company’s causes of action against the appellants.
BANKRUPTCY AND INSOLVENCY – where corporate trustee sold property to new company at undervalue – where brother-in-law of director of corporate trustee had substantial personal tax liabilities and also held a mortgage over property – where primary judge found that brother-in-law of director of corporate trustee had an interest in property – where primary judge found that sale of property was pursuant to dishonest and fraudulent design to avoid claims of creditors of the company and brother-in-law – principles of appellate review of factual findings by primary judge – where primary judge’s findings were open to be made and demonstrate no error.
MORTGAGES – where discharge of mortgage for nil consideration is an alienation of property with intent to defraud creditors and void pursuant to s 172 of the Property Law Act 1958 (Vic) – where tracing remedy available against second appellant, as the ultimate recipient of the value of the discharged mortgage.
EVIDENCE – admission into evidence of transcripts of examinations under s 81 of the Bankruptcy Act 1966 (Cth) – where appellants accepted that respondents were entitled to rely on transcripts for the purposes of proceedings under the Bankruptcy Act 1966 (Cth), but not proceedings brought under general law – where judge correct to disallow partial objection to tender of the transcripts.
Original article available at: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2023/2023fcafc0093
For more information, see the original judgement.
