Mar 17, 2014

Summary of Goertz v. Goertz

Goertz v. Goertz, 1995 CanLII 4042 (SK CA)
Appeal by the bankrupt of part of a judgment setting aside certain conveyances of land made by him to his wife prior to his bankruptcy. The bankrupt appealed on the grounds (a)that the trustee failed to prove that the bankrupt was insolvent at the date of the impugned conveyance and (b)in respect of the conveyance of the homestead, ss.91(2) of the Bankruptcy Act should have no application since the property in question, being exempt from seizure, would not have been divisible amongst the creditors in any event. The trustee cross appealed on the ground that the homestead property, having been previously conveyed by the bankrupt to his wife, had lost its character as a homestead as of the date of the assignment in bankruptcy.HELD: 1)The appeal on grounds (a) failed as there was evidence to support the finding by the trial judge that the bankrupt was unable to pay all of his debts at the time of the impeached transaction without the benefit of the claimed lands. The criterion provided by ss.91(2) had been used. Section 91(2) refers to property of the bankrupt, not to exigible property or property divisible amongst creditors. 2)Ground (b) failed. For the purposes of ss.67(1)(b), whether the property was exigible or not at the date of the conveyance is irrelevant. 3)The cross appeal by the trustee was allowed and an order authorizing judicial sale was issued. 4)It was not necessary to consider the application of the Fraudulent Preferences Act or the Statute of Elizabeth. 5)The court did not consider the claims under the Matrimonial Property Act or constructive trust raised by the bankrupt's wife as they had not been raised in the court below.