Re Barton, Thomas v Ex Parte The Official Receiver [1983] FCA 366

CATCHWORDS

BANKRUPTCY - Payment of money by way of loan - intended for purchase of real property and shares to be retained

by payee - disposition or settlement - sequestration of estate of disponor/settlor and within two years - whether payment made to defraud creditors - loan agreement for repayment after twenty years with interest five yearly on less than commercial rates - whether payment to "purchaser" -

good faith - whether for valuable consideration - onus of

proof.

Bankruptcy Act 1966 s.120, s.121

RE ;: 'THOMAS BARTON; EX PARTE THE OFFICIAL RECEIVER, TERENCE BARTON (Respondent) No. 310 of 1974

McGREGOR J. Sydney

9 December 1983

way

IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISTON

BANKRUPTCY DISTRICT OF THE STATE No. 310 of 1974 OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY RE: THOMAS BARTON Bankrupt EX PARTE: THE OFFICIAL RECEIVER Applicant

TERENCE BARTON

; Respondent _ REASONS FOR JUDGMENT McGregor J. Date: 9 December 1983 THE OFFICIAL RECEIVER ("Offticial Receiver") has made an

application for certain declaratory orders pursuant to 55.120 and

121 of the Bankruptcy Act 1966 ("the Act") arising out of a transaction between THOMAS BARTON ("the bankrupt"). and TERENCE BARTON ("the resvondent""). Omitting formal parts it 1s in che

following terms -

"(a) That a payment made on or about 14th April 1973 by Thomas Barton (hereinafter called "the Bankrupt") to the Respondent, Terence Barton, now of 57 Oxford Street, Bondi Junction in the State of New South Wales, in the sum of 3170,000.00 is void as adainst the Applicant as trustee of the property of the Bankrupt as being a disposition of property with intent to

(mB) (d)

(e)

(f)

The following

"C1)

(2)

2.

defraud creditors, not being a disposition for valuable consideration in favour of a person who acted in qood faith OR ALTERNATIVELY that the said payment 1s void as against the Applicant as being a settlement of property not being - (a) a settlament made before and in consideration of marriage, or made in favour of a purchaser or encumbrancer in good faith and for ~ valuable consideration; or (b) a settlement made on or for the spouse or children of the settlor of property that has accrued to the settlor after marriage in right of the spouse of the settlor;