FEDERAL COURT OF AUSTRALIA

Peacock, in the matter of Peacock v Peacock

[2000] FCA 857

BANKRUPTCY – disclaimer of onerous property – application for vesting of property pursuant to s 133(9) Bankruptcy Act 1966 (Cth) – Commissioner of Titles’ caveat pursuant to s 188(iii) Transfer of Land Act 1893 (WA) – “improper dealing” – Family Court of Western Australia order vesting property in applicant – jurisdiction to make an order – matter transferred to Family Court of Western Australia.

Bankruptcy Act 1966 (Cth) s 133(9)

Judiciary Act 1903 (Cth) s 39

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ss 3, 4, 11

Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA) s 4(4)

Transfer of Land Act 1893 (WA) s 188(iii)

Re Pacific Coals Pty Ltd; Ex Parte Construction, Forestry, Mining and Energy Union [2000] HCA 34 cited

McIntosh v National Australia Bank Ltd (1988) 80 ALR 47 cited

IN THE MATTER OF MARK WILLIAM PEACOCK

EVELYN MARGARET PEACOCK v MARK WILLIAM PEACOCK AND OFFICIAL TRUSTEE IN BANKRUPTCY AND REGISTRAR OF TITLES

W 7020 OF 2000

LEE J

23 JUNE 2000

PERTH

IN THE MATTER OF MARK WILLIAM PEACOCK

THE COURT ORDERS THAT:

1.         The matter be transferred to the Family Court of Western Australia.

2.         The applicant file an outline of relevant facts and submissions on the reasons for decision in this matter.

3.         Costs be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE MATTER OF MARK WILLIAM PEACOCK

REASONS FOR JUDGMENT

1                     This is an application for a vesting of property pursuant to s 133(9) of the Bankruptcy Act 1966 (Cth). The background to the matter is that the applicant (“Mrs Peacock”) and the first respondent (“Mr Peacock”) are registered as proprietors as joint tenants of a property described as the matrimonial home.

2                     Proceedings were commenced in the Family Court of Western Australia (“the Family Court”) in relation to the marriage of those parties and an order of dissolution made, subsequent to which Mr Peacock in these proceedings, the husband, was declared bankrupt. The Official Trustee in Bankruptcy (“the Trustee”) was the Trustee in that bankruptcy and upon assuming that position he determined that the interest of Mr Peacock in the matrimonial home carried with it onerous provisions, no doubt covenants under a mortgage and, perhaps, obligations to be fulfilled by the bankrupt in relation to Mrs Peacock’s interest in the property, and that it would be appropriate for the Trustee to disclaim his interest in the property. It does not appear that consideration was given to assigning to Mrs Peacock the interest vested in the Trustee.

3                     After the disclaimer was formally made by the Trustee, and notice of it given to the third respondent, the Registrar of Titles (“the Registrar”), a further order was made in the Family Court vesting the interest of Mr Peacock in the matrimonial home in Mrs Peacock. The order was in terms that the right, title and interest of Mr Peacock in the former matrimonial home be vested absolutely in Mrs Peacock who was to indemnify Mr Peacock in respect of any liability under the mortgage covenants.

4                     Subsequently, the Family Court made a further order that registration of the transfer of interest of Mr Peacock in the matrimonial home be effected by the Registrar of the Family Court, on behalf of Mr Peacock, executing the appropriate transfer in favour of Mrs Peacock. That was done and the transfer presented to the Registrar for registration.

5                     At that point an unusual event occurred. The Registrar, directed by the Commissioner of Titles (“the Commissioner”) under s 188(iii) of the Transfer of Land Act 1893 (WA), lodged a caveat “on behalf of Her Majesty” on the ground that a transfer of the land would amount to an “improper dealing”. It is unnecessary to determine what the meaning of that term may be as it is used in s 188(iii).

6                     As matters then stood, and as they stand now, there is an order of the Family Court vesting in Mr Peacock whatever interest Mr Peacock held in the property after the Trustee had given notice of disclaimer under s 133(9) of the Bankruptcy Act. That order is an order of a superior court of record. It cannot be contended by any party in these proceedings that the order is of no effect. In respect of the standing of such an order I refer to the remarks of Kirby J in the recent decision of Re Pacific Coals Pty Ltd; Ex Parte Construction, Forestry, Mining and Energy Union [2000] HCA 34 where his Honour examines the nature of the effect of orders of a court of the standing of the Family Court.

7                     It may be thought that in the absence of any other order by the Family Court, or by a court with authority to set aside or vary an order of the Family Court, that any person affected by the order was bound to give effect to the order. Perhaps upon lodgment of the caveat the proper course under the Transfer of Land Act was to bring an application before a court vested with jurisdiction to resolve whether the caveat was to be removed. Such an application could, and perhaps should, have been made to the Family Court. By virtue of the Jurisdiction of Courts (Cross‑Vesting Act 1987 (WA) (s 4(4)), the Family Court has jurisdiction in all matters in which the Supreme Court has jurisdiction.

8                     Furthermore, either by operation of s  39 of the Judiciary Act 1903 (Cth) or by virtue of the provisions of ss 3 and 4 of the Jurisdiction of Courts Cross-Vesting Act 1987 (Cth), at all times the Family Court had jurisdiction under the Bankruptcy Act and was a court that could make orders under that Act. Therefore, at the time the Family Court made the order it had jurisdiction and power to make a vesting order under s 133(9) of the Bankruptcy Act. It may be assumed that if it were necessary for the Family Court to rely upon that jurisdiction to make such an order it did so. In any event, until set aside or varied, the order is to be taken to be an order made within the jurisdiction of the Family Court.

9                     I note that Mr Peacock has not appeared and that the Trustee and the Registrar have filed appearances submitting to whatever orders may be made. The Registrar has not removed the caveat lodged which may otherwise appear to be the appropriate way of giving effect to orders of the Family Court already on foot.

10                  All of the foregoing indicates that either jurisdiction under s 133(9) of the Bankruptcy Act has been exercised and the relevant power spent, or that by virtue of the terms of the order of the Family Court, no issue remains to be determined in the matter. Either way, it would be inappropriate for this Court to be seen to making any order, whether by way of a declaration or otherwise, that did not pay full respect to the orders of the Family Court.

11                  Therefore, assuming that the Court has jurisdiction in the matter (see: McIntosh v National Australia Bank Ltd (1988) 80 ALR 47 per Gummow J at 49), the only proper course is to have the application now before the Court transferred to the Family Court pursuant to s 11 of the Jurisdiction of Courts (Cross-Vesting) Act (Cth) in order that the Family Court may confirm or vary the terms of its order, as necessary, and in exercise of the jurisdiction to deal with an application under the Transfer of Land Act vested in it, give any direction to the Registrar as may be necessary to have the caveat removed and the transfer registered.

12                  Although cognisant of Mrs  Peacock’s need to have the unfortunate dilemma that has arisen in this matter resolved swiftly, that can be done only by the appropriate court with power to act in respect of the order of the Family Court, namely the Family Court.

13                  I will direct that the matter be transferred to the Family Court, as soon as that may be practicably arranged, with the intention that the matter be listed in that Court, as soon as is convenient, for the purpose of resolving this application at the earliest opportunity. I understand that the matter may come before a duty judge on Monday 26 June 2000.

14                  I will direct that the District Registrar of this Court arrange for the transfer of papers forthwith and that in order that the Family Court may be in a position to deal with the matter speedily, and ex parte, Mrs Peacock file an outline of relevant facts not deposed to already in these proceedings that indicate the need for urgency and any further detail that may be required, including facts that are relevant to any order that the Family Court might make. The reasons I have provided in this matter should be made available to be included with the papers transferred to the Family Court.

Associate:

Dated:              23 June 2000