Key Points

  • Court considers the ownership of assets situated at premises owned by the bankrupt in the context of limited relevant evidence
  • Court emphasises the importance of joining the correct parties to litigation

The Facts

A trustee in bankruptcy ( C ) brought an application for a declaration as to the extent of the proprietary interest of the bankrupt (R1) in various chattels spanning from signed Beatles memorabilia to empty boxes. C argued that items located at premises owned by R1 were assets belonging to R1 and therefore vested in C. R1’s wife and daughter (R2 and R3) argued that they owned a number of the assets, as did other members of R1’s family – although they were not joined as parties to the application.

The Decision

The Judge examined the factual evidence regarding ownership of each of the items and considered relevant principles in relation to, amongst other things, assets which were purportedly gifted by R1 to R2 and R3. The Court reiterated that for there to be a valid gift, there needs to be both an intention to make a gift and also physical delivery – noting that simply “touching” an item does not suffice for the purposes of delivery. Also relevant was the location of the item in question.

The Judge highlighted a number of concerns including the fact that there could be subsequent conflicting judgments regarding ownership given that not all those people asserting ownership had been joined as parties and that the Court had not been sufficient time or information to be able to properly consider the position in relation to each asset.


The decision applies established principles for determining ownership of chattels but is perhaps more instructive in demonstrating the time and costs that can be wasted in not taking a considered approach to such applications.

Wood v Lowe & ors