Roufeil as Trustee of the Bankrupt Estate of Tarrant v Tarrant Enterprises Pty Ltd as Trustee for the MRT Family Trust [2023] FCAFC 142

Federal Court of Australia Roufeil as Trustee of the Bankrupt Estate of Tarrant v Tarrant Enterprises Pty Ltd as Trustee for the MRT Family Trust [2023] FCAFC 142 Appeal from: Roufeil as Trustee of the Bankrupt Estate of Mervyn Ross Tarrant v Tarrant Enterprises Pty Ltd as Trustee for the MRT Family Trust (No 2) [2022] FedCFamC2G 1077

File number(s): NSD 137 of 2023

Judgment of: DERRINGTON, ABRAHAM and JACKMAN JJ

Date of judgment: 23 August 2023

Catchwords: BANKRUPTCY AND INSOLVENCY – appeal from decision of Federal Circuit and Family Court of Australia (Division 2) – where transfers made by a person who later became bankrupt from his current account to a loan account held by a company – whether the transfers may be avoided on the basis that each transfer constituted a "payment of money" within the meaning of ss 120 and 121 of the Bankruptcy Act 1966 (Cth) – "payment of money" bears its ordinary meaning and the mere fact of receipt of value, despite intermediary steps, is sufficient to constitute a payment of money – no defence to the avoidance of the transfers by reason of reg 31 of the Bankruptcy Regulations 2021 (Cth), double recovery or set-off PRACTICE AND PROCEDURE – whether the proceedings ought to have been stayed as an abuse of process – whether there was a failure to comply with the rule in Browne v Dunn in relation to the issue of whether there was an agreement to forbear suing the bankrupt in negligence – ample notice given of intention to challenge existence of agreement and direct challenge to the witnesses in cross-examination – whether pre-judgment interest ought to be awarded on the judgment in circumstances where it was not pleaded

Legislation: Bankruptcy Act 1966 (Cth) ss 86, 120, 121, 121A, 122, 139ZQ, 149D, 149F Corporations Act 2001 (Cth) s 553C Federal Court of Australia Act 1976 (Cth) s 51A Proceeds of Crime Act 2002 (Cth) Bankruptcy Regulations 1996 (Cth) reg 6.09 Bankruptcy Regulations 2021 (Cth) reg 31 Supreme Court Act 1970 (NSW) s 94