Azzopardi, P. v. & Bird, A.N [1979] FCA 166

CATCHWORDS

Bankruptcy Act 1966, s. 123 - payee having failed to prove that he was a payee in the ordinary course of business, payment having been received as a result of a letter of demand from the payee's solicitors, payee not protected against the doctrine of relation back. Accordingly, payment declared void as against the trustee of the estate of the bankrupt. RE: ALEX NEVILLE BIRD (as Trustee of the Estate of YIANGOS ARCADIOU, a Bankrupt )

EX PARTE: PAUL AZZOPARDI trading as Paul Azzopardi & Co.

SWEENEY J. 19 DECEMBER 1979

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION No. 68 of 1977

BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA

RE: ALEX NEVILLE BIRD (as Trustee of

the Estate of YIANGOS ARCADIOU, a bankrupt)

EX PARTE: PAUL AZZOPARDI trading as Paul AzzOpardi & Co.

ORDER JUDGE MAKING ORDER: SWEENEY J. WHERE MADE: MELBOURNE DATE OF ORDER: 19 DECEMBER, 1979

THE COURT DECLARES THAT:

The payment of $4000.00 made by the bankrupt to the respondent on 29 September 1976 1s void as against the applicant as trustee of the property of the bankrupt and orders that the respondent pay to the applicant the sum of $4000.00, together with his costs of and incidental to the application, including reserved costs, such costs to be taxed if not agreed.

Liberty to apply is reserved to either party,

IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION

BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA

No. 68 of 1977

Re: Alex Neville Bird (as Trustee of the estate of Yiangos Arcadiou, a bankrupt)

Applicant

Paul Azzopardi trading as Paul Azzopardi & Co.

Respondent

REASONS FOR JUDGMENT

C.A. Sweeney J. 19 December, 1979

In this application, as amended by leave, the applicant seeks the following declarations and orders:

"(a) That payment made by the bankrupt to the Respondent on the 29th September, 1976 for $4,000.00 is void as against the applicant as Trustee of the property of the bankrupt as being payment having the effect of giving the respondent a preference priority or advantage over creditors of the bankrupt or alternatively by virtue of the Bankruptcy of the Bankrupt having been deemed to have relation back to date the 20th September, 1976 on which date the bankrupt gave notice to some of his creditors namely Gubbatta Nominees Pty. Ltd trading as Highett Timber Co., Tasmanian Board Mills Ltd., trading as Country & Western, Guardian Investments Pty. Ltd., Beneficial Finance Corporation Ltd. and Alliance Acceptance Corporation Limited, that he has suspended or 1s about to suspend payment of his debts.