Allison v Murphy [2021] FCAFC 232

Federal Court of Australia

Allison v Murphy [2021] FCAFC 232 Appeal from: Application for extension of time: Murphy v Allison [2021] FedCFamC2G 184

File number: QUD 389 of 2021

Judgment of: BESANKO, COLVIN AND DOWNES JJ

Date of judgment: 20 December 2021

Catchwords: BANKRUPTCY AND INSOLVENCY - funds held in solicitor's trust account when sequestration order was made by registrar - funds transferred to petitioning creditor after sequestration order made - transferred funds less than debt owed to creditor - creditor did not accept tender of payment of debt - whether judge conducted de novo hearing - whether judge put to one side the fact that there had been a sequestration order - whether judge erred in approaching review on basis that sequestration order meant that funds in solicitor's trust account were not funds available to debtor for the purposes of the hearing de novo - consequence of payment not being accepted by creditor was that creditor's petition should not have been dismissed

Legislation: Bankruptcy Act 1966 (Cth) s 52 Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) r 4.06

Cases cited: Allison v Murphy [2021] FCA 1551 Bechara v Bates [2021] FCAFC 34 Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589 Harrington v Lowe (1996) 190 CLR 311 McIntosh v Shashoua (1931) 46 CLR 494 Porter as former trustee of the estates of Ghasemi and Kakhsaz v Ghasemi [2021] FCAFC 144 Psevdos v Commonwealth Bank of Australia (No 2) [2017] FCA 19 Robson as former trustee of the estate of Samsakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 [2021] FCAFC 143 Stead v State Government Insurance Commission (1986) 161 CLR 141 Taylor v Deputy Commissioner of Taxation [1999] FCA 195