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“Which little pig are you?” – Creditor Claims and the Family Home

“Which little pig are you?” – Creditor Claims and the Family Home. Tim McGrath, Partner Melanie Husband, Senior Associate 24 July 2014. Miller Harris in Business. Looking below the surface: home ownership. Constructive trusts Resulting trusts Exoneration Equitable accounting

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“Which little pig are you?” – Creditor Claims and the Family Home

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  1. “Which little pig are you?” – Creditor Claims and the Family Home Tim McGrath, Partner Melanie Husband, Senior Associate 24 July 2014 Miller Harris in Business

  2. Looking below the surface: home ownership • Constructive trusts • Resulting trusts • Exoneration • Equitable accounting • Occupation rent • Bankruptcy Act Miller Harris in Business

  3. The bankrupt co-owner Miller Harris in Business

  4. Case study Bankrupt $50,000 Spouse $50,000 Miller Harris in Business

  5. Miller Harris in Business

  6. Resulting trusts Miller Harris in Business

  7. Constructive trusts • Remedial in nature; what is required to do justice between the parties? • Muschinski v Dodds • Calverley v Green Miller Harris in Business

  8. 1. Joint property except his interest greater because: Miller Harris in Business

  9. 2. Joint property except trust over his undeserved equity Miller Harris in Business

  10. Here is how the trust worked: Her $ contribution He retains this equity His $ contribution His ½ share property He must account to her for this She retains this equity Her ½ share property Miller Harris in Business

  11. Exoneration? ? ? Miller Harris in Business

  12. Miller Harris in Business

  13. Farrugia: trustee’s claim Miller Harris in Business

  14. Mrs Farrugia’s figures Miller Harris in Business

  15. Shortfall scenario Miller Harris in Business

  16. What could possibly go wrong? • Equitable accounting • Occupation rent Miller Harris in Business

  17. Div 4A Bankruptcy Act Elements for a claw back Miller Harris in Business

  18. Claw back provisions Date of bankruptcy Miller Harris in Business

  19. Birdseye v Sheahan Miller Harris in Business

  20. Div 4B Bankruptcy Act The Edelsten factor; income diverted from the bankrupt to a third party Miller Harris in Business

  21. What about the PPSA? • No application to land • No application to equitable interests • No application to Bankruptcy Act recovery Miller Harris in Business

  22. What does it all mean? Tim McGrath Partner Melanie Husband Senior Associate Miller Harris in Business

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