Moss v Gunns Finance Pty Ltd (Receivers & Managers Appointed) (In liquidation) [2018] FCAFC 185

FEDERAL COURT OF AUSTRALIA

Moss v Gunns Finance Pty Ltd (Receivers & Managers Appointed) (In liquidation) [2018] FCAFC 185 Appeal from: Gunns Finance Pty Ltd (Receivers And Managers Appointed) (in Liquidation) v Moss & Anor [2017] FCCA 1773

File number: VID 978 of 2017

Judges: GLEESON, LEE, and BANKS-SMITH JJ

Date of judgment: 29 October 2018

Catchwords: BANKRUPTCY – appeal – application for orders reversing trustees' decision not to admit a proof of debt in full and for a personal insolvency agreement to be set aside – personal insolvency agreement set aside by primary judge – whether primary judge should have set aside personal insolvency agreement – whether personal insolvency agreement calculated to benefit creditors generally – where debtor has a cross-claim – no error established in primary judge determining issues raised by cross-claim necessary to form a view as to whether proof of debt should have been admitted in full – appeal dismissed

Legislation: Australian Securities and Investments Commission Act 2001 (Cth) Contracts Review Act 1980 (NSW) Corporations Act 2001 (Cth) ss 79, 1022B, 1013D, 1013E, 1022A, 1022B, 1041H Bankruptcy Act 1966 (Cth) ss 104, 178, 188, 221, 222 Insolvency Law Reform Act 2016 (Cth) Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) Rule 10.04

Cases cited: Augustyn v Putnin (1988) 83 ALR 514 Beard v Prestige Banking Industries (1981) 52 FLR 384 Bendigo and Adelaide Bank Ltd v Clout [2016] FCA 119; (2016) 14 ABC(NS) 46 Cummings v Claremont Petroleum NL (1996) 185 CLR 124 Forshaw v Thompson (1992) 35 FCR 329 Hingston v Westpac Banking Corporation [2012] FCAFC 41; (2012) 200 FCR 493 McGoldrick v Official Trustee in Bankruptcy (1993) 47 FCR 547 Musolino v Sidiropoulos (1991) 101 ALR 235 New Age Constructions (NSW) Pty Ltd v Etlis [2013] FCA 884; (2013) 11 ABC (NS) 542 Osborne v Gangemi [2011] FCA 1252; (2011) 9 ABC (NS) 257 Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Ltd (in liq) [2013] FCAFC 5; (2013) 209 FCR 368 Re Brindle; Ex parte FB & FA McMahon Pty Limited (1992) 35 FCR 506 Re Dingle; Ex parte Westpac Banking Corporation v Worrell (1993) 47 FCR 478 Re Rogers; Ex parte CMV Parts Distributors Pty Ltd (1989) 20 FCR 561 Re Tyndall; Ex parte Official Receiver (1977) 30 FLR 6; 17 ALR 182 Scott v Davis [2000] HCA 52; 204 CLR 333 Westpac Banking Corporation v Hingston (No 2) [2010] FCA 1116; (2010) 117 ALD 552 Zantiotis v Andrew (1987) 80 ALR 23 Clarke v Great Southern Finance Pty Ltd (in liq) [2010] VSC 473 (2010) 243 FLR 451 Clarke v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liq) [2014] VSC 516 Woodcroft-Brown v Timbercorp Securities Ltd (No 2) [2011] VSC 526 Morgans v Launchbury [1973] AC 127