Recent Cases

Stolyar v Scott (Trustee) [2023] FCAFC 61 (27 April 2023) (Banks-smith, Downes and Jackman JJ)


APPEAL AND NEW TRIAL – where arguments sought to be advanced which were not advanced at first instance – where the arguments may have been met by evidence at the trial – arguments that a claim is not maintainable must be expressly pleaded under r 16.08(c) of the Federal Court Rules 2011 (Cth) – whether the primary judge erred in their exercise of discretion in ordering indemnity costs

EQUITY – whether the primary judge erred in focussing on the source of purchase moneys as being determinative of whether a resulting trust arises – whether the presumption of a resulting trust is “weak” and only arises where there is an absence of objective evidence as to the intention of the person providing the funds – whether any resulting trust should have been in favour of entities other than the bankrupt – whether oral agreement gave rise to a trust or merely to a contractual arrangement – whether analysis of the availability of the defence of laches should have focussed on the conduct of the bankrupt or the trustee in bankruptcy