Re Bird, A.N. v. Ex Parte Gregoriades, N.C. [1980] FCA 9

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 and from the issue and service of a County Court summons, 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)

EX PARTE: N.C. GREGORIADES

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 YIANCOS ARCADIOU) EX PARTE: N.C. GREGORIADES ORDER JUDGE MAKING ORDER: SWEENEY J. WHERE MADE: MELBOURNE DATE OF ORDER: 19 DECEMBER 1979

THE COURT DECLARES THAT:

The payment of $2009.00 made by the bankrupt to the respondent on 7 December 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 $2009.00, together with his costs of and incidental to the application, including reserved costs, such costs to be taxed if not agreed. Liberty is reserved to either party to apply.

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

Applicant

N.C. Gregoriades

Respondent

REASONS FOR JUDGMENT

C.A. Sweeney J. 19 December, 1979

In this application, as amended by leave, Alex Neville Bird as trustee of the estate of Yiangos Arcadiou,

a bankrupt, seeks the following declarations and orders:

"(a) That payment made by the bankrupt to the Respondent N.C. Gregoriades being one payment of $2,009.00 made on or about the 7th day of December, 1976 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 the 20th September, 1976.