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3 Art Antiquity & L. 311 (1998)
Title to Paintings on Separation of Couple and Subsequent Bankruptcy of One Spouse

handle is hein.journals/artniqul3 and id is 323 raw text is: 


                                 Katherine   Sykes*

In bankruptcy proceedings under the Australian Bankruptcy Act 1966 it is for the Trustee in
Bankruptcy to show, on the balance of probabilities, what is the Bankrupt's property, and what is
not. So held Hill J. in the Federal Court of Australia in the recent case of Wily v. Fitz-Gibbon and
Fitz-Gibbon,' in which Mr Wily, the Trustee, sought to recover four paintings from Mr Fitz-
Gibbon, the Bankrupt, and Mrs Fitz-Gibbon, who had been joined to the proceedings by an earlier
order of the court. The case entirely revolved around the ownership of the paintings in question.

The  Facts

      Mr  and Mrs Fitz-Gibbon had separated and lived at different addresses. At some point
after they split up, the couple had each taken some of the paintings which had previously adorned
the walls of their marital home. Mr Fitz-Gibbon had stored his share in his mother's garage, which
had subsequently flooded: according to both Mr and Mrs Fitz-Gibbon, the remaining pictures
belonged to Mrs Fitz-Gibbon. Mrs Fitz-Gibbon had subsequently lent her husband one of the
pictures to decorate his rented flat, but this had now been returned to her and was not, as the
Trustee alleged, the property of Mr Fitz-Gibbon.

The  Evidence

      Evidence was  given by an estranged friend of Mr Fitz-Gibbon, Mr Hudson, that he had
accompanied him on at least four occasions to an annual municipal art exhibition at Lane Cove on
each of which occasions Mr Fitz-Gibbon had purchased a painting. The four paintings bought at
Lane Cove were the same as those forming the subject of the dispute. Mr Hudson attested that no
mention was  ever made about the potential ownership of these paintings; although after the
separation he had stored them in his house before eventually delivering them to Mrs Fitz-Gibbon.
Mr Wily, on the other hand, gave evidence of a conversation with Mr Fitz-Gibbon in which the
latter said that he had bought the four paintings with his wife from their joint income account. In
that conversation, Mr Fitz-Gibbon referred to having purchased eight paintings, half of which
were taken by him and half by his wife on their separation, and indicated that his own had been
destroyed by flooding whilst the remaining four, the subject of the action, had been taken by his wife.
       In cross-examination Mr Fitz-Gibbon conceded that he had paid for the paintings himself,
and that he had been invoiced for them. Mrs Fitz-Gibbon affirmed his evidence and stated that her
husband had given the paintings to her, either as birthday presents during the marriage, or later, on
separation. She recalled that Mr Fitz-Gibbon had demanded them back during an acrimonious

*      Solicitor; Institute of Art and Law.
1      [1998] 522 FCA.


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