Shaw, Bryan George Ex Parte Andrew, William Edward ANZ Banking Group Ltd [1977] FCA 83

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IN THE FLDERAL COURT OF AUSTRALIA )

GENERAL DIVISION . )

BANKRUPTCY DISTRICT OF THE STATE } No. 38 of 1974/X ) . )

OF NEW SOUTH VIALES AND THE AUSTRALIAN CAPITAL TERRITORY

RE: BRYAN GEORGE SHAW Debtor EX PARTE: WILLIAM EDWARD ANDREW Trustee

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AUSTRALIA & NEW ZEALAND * BANKING GROUP LIMITED

Respondent JUDGE MAKING ORDER: RILEY J. - DATE OF ORDER: 14 November 1977 WHERE MADE: Sydney DECLARATIONS AND ORDERS on DECLARE: 1. That the payment to the debtor's No. 2 account

of $61,871.32 was by reason of s. 122 of the ' Bankruptcy Act 1966 void to the extent of A $58,864.98 as against the trustee of the deed of assignment executed under Part X of the Act on 23 October 1974. 2. that the amount of $1,069.08 standing to the credit of the debtor's No. 2 account on and after 8 November 1974 was property of the debtor ' divisible amongst his creditors.

ORDER: 1. That the respondent bank pay to the trustee a sum equal to the total, namely $59,934.06, of the two said amounts of $58,864.98 and $1,069.08, and his costs of and incidental to the application.

CATCHVWIORDS

BANKRUPTCY - VOIDABLE PREFERENCES -— BANK -— COMBINATION OF ACCOUNTS - WHETHER DEBTOR ABLE TO PAY OUT OF OWN

MONEY —- WHETHER BANK PAYEE IN GOOD FAITH -— BANKRUPTCY ACT 1966 SEC. 122, .

REASONS FOR JUDGMENT

Bryan George Shaw executed a deed of assignment under Part X of the Bankruptcy Act 1966 on 23 october 1974. The date when the relevant resolution under s. 204 (1) (b) was passed is not shown by evidence formally adduced before me on the hearing

of this application, but it is shown by the certificate filed

pursuant to s. 204 (7) to have also been 23 October. Mr. W. E. Andre

is the trustee of the deed.

His application to the Court for certain declarations is primarily based on s. 122 of the Act, which by s. 231(2) applies, in the events which have happened, in relation to the deed of assignment as if on 23 October 1974 a sequestration order had been made against Mr. Shaw on a creditor's petition presented that day, and which avoids as against the trustee certain transactions as having the effect of giving a creditor a preference, priority or advantage over other creditors. The creditor alleged to have been preferred is the Australia and New Zealand Banking Group Limited, the banker for Mr. Shaw ana for certain companies controlled by him. The companies concerned were called Talga Limited, Australian Memorial Parks Pty. Limited, Mekol Pty. Limited and Bidges Pty. Limited. I shall call them