Re Bird, Alex Neville (as Trustee of the Estate of Yiangos Arcadiou, a bankrupt) Ex parte M.& G. Casabene & Sons [1980] FCA 11

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CATCHWORDS

Bankruptcy Act 1966 - held, under s.122, a payee seeking to show that he was a payee in good faith bore the onus of negativing the inference referred to in sub-sec. (4) (c); held, onus discharged in respect of first payment challenged but not discharged in respect of second payment; meaning

of words "unable to pay his debts as they became due from his own money" considered. Held in respect of first payment, payee had also discharged the burden of proving that it was a payee in good faith within the meaning of s.123 and accordingly held that that payment was protected against the doctrine of relation back; first payment declared void as against the trustee of the bankrupt's estate.

RE: ALEX NEVILLE BIRD (as Trustce of the Estate of YIANGOS ARCADIOU, a bankrupt)

EX PARTE: M. & G. CASABENE & SONS

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: M. & G. CASABENE & SONS ORDER JUDGE MAKING ORDER: SWEENEY J. WHERE MADE: MELBOURNE DATE OF ORDER: 19 DECEMBER 1979

THE COURT DECLARES THAT:

The payment made by the bankrupt to the respondent of $2,500.00 on 4 February 1977 1s void as against the applicant and orders that the respondent pay to the applicant the sum of $2,500.00. It is ordered that the applicant pay one third of the costs of the respondent of and incidental to the application, including reserved costs, such costs to be taxed if not agreed. The costs so paid to the respondent and the taxed costs of the applicant of and incidental to the application may be recovered by the applicant from the estate of the bankrupt. Otherwise, the

application is dismissed. Liberty 1s reserved to

either party to apply.