In Official Trustee in Bankruptcy v Shaw & Anor [2019] VSC 681 (14 October 2019) John Dixon J.
The facts were –
· In 2014 a sequestration order was made against the first defendant who was the sole registered proprietor of a residential unit and an associated car parking space. In July 2019 the Official Trustee entered into a contract to sell the property with settlement due on 4 October 2019. In August the bankrupt ceased to be registered proprietor of the land. In September the Federal Court dismissed an application by the bankrupt for interlocutory injunctive relief directed at the Official Trustee’s decision to sell.
· On 3 October 2019 the bankrupt lodged caveats over each property on the ground of “estoppel”.
John Dixon J. ordered removal of the caveats on the following grounds –
1. There was no serious question to be tried or prima facie case that principles of estoppel could give the bankrupt a claim to an interest in the land enforceable against the Official Trustee because –
(a) under s. 58(1) of the Bankruptcy Act (Cth) all of his right, title and interest in the land vested in the Official Trustee whether as his property when he became bankrupt or as after-acquired property;
(b) it was inconceivable that circumstances that would give rise to his estoppel extended before the time the bankrupt ceased to be the registered proprietor, because it was nonsensical to suggest that the registered proprietor had a claim against himself for an estate or interest in land pursuant to an estoppel;
(c) the caveat was lodged for the improper purpose of preventing sale while he appealed the Federal Court decision. The only proper purpose of a caveat was to prevent dealings with that property because of a claimed interest in it.
[44]-[48], [53], [55]
2. The balance of convenience was against the caveator because –
(a) it was frustrating the settlement of the contract, affecting the interests of a third party purchaser adversely, and if, as would be the consequence of significant delay, the sale was terminated there would be the prospect of prejudice to the caveator’s creditors;
(b) he could not proffer an undertaking as to damages;
(c) he had not explained why the caveat had been lodged so close to settlement. He could still in the context of further Federal Court proceedings seek relief affecting the future conduct of the Official Trustee in relation to the proceeds of sale.
[55]-[58]
Philip H. Barton
Owen Dixon Chambers West
14 April 2020
