Barnett, Re

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Hope, J.
• Citation: (1983), 43 A.R. 215 (QB)
• Date: 02 February 1983
• Subject Matter: FRAUD AND MISREPRESENTATION,BANKRUPTCY

Barnett, Re (1983), 43 A.R. 215 (QB)

MLB headnote and full text

Re Barnett

(No. 013373)

Indexed As: Barnett, Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Hope, J.

February 2, 1983.

Summary:

Four creditors of a bankrupt applied for an order declaring a conveyance of real property by the bankrupt void as against the trustee in bankruptcy. The Alberta Court of Queen's Bench, in allowing the application, held that the conveyance was void under both the Bankruptcy Act and the Statute of Elizabeth.

Bankruptcy - Topic 7323

Setting aside transactions prior to bankruptcy - Settlements - Settlement defined - The Alberta Court of Queen's Bench held that a "settlement" under s. 69(1) of the Bankruptcy Act, R.S.C. 1970, c. B-3, was a voluntary disposition of property to and for the benefit of an individual with the intention that it be retained by that individual either in its original form or in such form that could be traced - See paragraph 16.

Bankruptcy - Topic 7324

Setting aside transactions prior to bankruptcy - Settlements - Exceptions - Bona fide purchaser for value - A bankrupt conveyed real property to a friend four months before making a voluntary assignment in bankruptcy - The property, having a market value of $34,000, was sold for $18,000 - Four creditors of the bankrupt applied for an order declaring the conveyance void under the Bankruptcy Act - The Alberta Court of Queen's Bench held that the conveyance was a settlement that was void as against the trustee in bankruptcy, because the purchaser did not prove he purchased in good faith and for valuable consideration - See paragraphs 13 to 19.

Fraud and Misrepresentation - Topic 1406

Fraudulent conveyances and preferences - Impeachable conveyances under Statute of Elizabeth - Conditions precedent to setting aside conveyance - A bankrupt conveyed real property to a friend four months before making a voluntary assignment in bankruptcy - The property, having a market value of $34,000, was sold for $18,000 - Four creditors of the bankrupt applied to set aside the conveyance under the Statute of Elizabeth - The Alberta Court of Queen's Bench, in allowing the application, held that where the applicants proved that the necessary consequence of the conveyance was to leave nothing for the creditors, the conveyance would be set aside - See paragraph 21.

Cases Noticed:

Re Schickele, [1977] 5 W.W.R. 421, refd to. [para. 16].

Re MacKeen, 10 C.B.R. 311, refd to. [para. 17].

Burton v. R. & M. Insurance Ltd. and Poole, 9 A.R. 589; 5 A.L.R.(2d) 14, refd to. [para. 21].

Statutes Noticed:

Bankruptcy Act, R.S.C. 1970, c. B-3, sect. 69(1) [para. 14]; sect. 69(3) [para. 15].

Counsel:

John D. Blair, for the applicants;

George Brosseau, for the bankrupt.

This case was heard at Edmonton, Alberta, before HOPE, J., of the Alberta Court of Queen's Bench, who delivered the following judgment on February 2, 1983: