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No credible basis raised to justify postponing sale of family home in bankruptcy proceedings
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Court of Appeal dismisses appeal and upholds decision of the High Court, in the bankruptcy of the appellant's husband, sanctioning the sale of their dwelling house, on the grounds that: (a) the trial judge was correct to decide that the appellant had no standing to make a collateral challenge to the bankruptcy or registration of the judgement mortgage; (b) whilst family home protection legislation was not a factor that would have a bearing on the exercise by the High Court of its statutory discretion to sanction the sale, the statutory scheme provides express protection for a spouse by reason of the requirement for court sanction of a sale and the authorities are clear that factors relating to the occupancy of the property by a family are relevant; (c) the appellant has not raised any credible legal or factual basis on which a postponement of the sale could be justified on account of her claim to have a beneficial interest in the dwelling; and (d) the appellant's claim that she was denied fairness in the process was not supported by the evidence.
Baker J (nem diss): Bankruptcy - appeal of a decision of the High Court sanctioning the sale of the appellant and her husband's dwelling house in her husband's bankruptcy - s. 61 of the Bankruptcy Act 1988, as amended - the appellant's husband was adjudicated bankrupt on 4 July 2016 - the appellant resided at the dwelling house with her three children - the appellant herself was not a bankrupt nor was she a borrower from the petitioning creditor or to any other relevant creditor - the appellant claimed to have a beneficial interest in the dwelling house in which she and her husband resided with their children and instituted proceedings against her husband seeking a declaration that she is entitled to a 50% interest in the premises - whether the trial judge failed to have regard to the provisions of the Family Home Protection Act 1976 from which the appellant claims to have derived rights - whether the trial judge failed to afford the appellant her rights to reside in the dwelling house, as it was her “family home” and entitled to protection under the Constitution - whether the trial judge erred in her consideration of the registration of the petitioning creditor as owner of a charge under burden 5 on the Folio - whether the appellant had standing in the present application to seek to set aside the bankruptcy or the judgment mortgage obtained by the petitioning creditor against the appellant's wife - no credible legal or factual basis on which a postponement of the sale could be justified - appellant failed to provide evidence that she had a beneficial interest in the property - appeal dismissed.
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