Marra Capital Investments Pty Ltd, in the matter of Tri-City Trucks (NSW) Pty Ltd (in liq) v Smith (liquidator) [2018] FCAFC 211

FEDERAL COURT OF AUSTRALIA

Marra Capital Investments Pty Ltd, in the matter of Tri-City Trucks (NSW) Pty Ltd (in liq) v Smith (liquidator) [2018] FCAFC 211 Appeal from: Smith v Marra Capital Investments Pty Ltd, in the matter of Tri-City Trucks (NSW) Pty Ltd (in liq) [2017] FCA 1482

File number: NSD 49 of 2018

Judges: DAVIES, MARKOVIC AND DERRINGTON JJ

Date of judgment: 28 November 2018

Catchwords: CORPORATIONS – appeal from a declaration that the appellant was not a creditor of a company in liquidation – where the appellant submitted that the primary judge mischaracterised two payments made to repay a debt – where the primary judge found that those payments were made on behalf of another company rather than on the payer's own behalf – where the appellant submitted that the payments were made by the payer on its own behalf in its capacity as guarantor of the debt and that upon making that payment it was subrogated to the rights of the bank – whether the appeal should be allowed – appeal dismissed.

Legislation: Corporations Act 2001 (Cth) ss 536, 1305

Cases cited: Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 358 ALR 683; [2018] FCAFC 93 Australian Securities and Investments Commission v Rich (2009) 236 FLR 1; [2009] NSWSC 1229 Bofinger v Kingsway Group Ltd (2009) 239 CLR 269 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 Electrical Enterprises Retail Pty Ltd v Rodgers (1988) 15 NSWLR 473 Fox v Percy (2003) 214 CLR 118 Laws v Australian Broadcasting Tribunal (1990)170 CLR 70 Manly Council v Byrne [2004] NSWCA 123 Manzi v Smith (1975) 132 CLR 671 Whitton v Regis Towers Real Estate Pty Ltd (in administration) (2007) 161 FCR 20