Evans, R.M. & Ors v Albany Nominees Pty Ltd [1987] FCA 721

«JUDGMENT No 72 1/@E

CATCHWORDS

BANKRUPTCY - preference - application by trustee pursuant to s.122 -— payments by bankrupts to creditor within six months prior to presentation of petition - whether payments made in good faith and ordinary course of business - creditor ought to have suspected insolvency and the effect of preference - finding of

good faith precluded by s.122(4)(c) - application granted. INTEREST - claim for - whether appropriate where the payments were long overdue and where the payments persuaded the creditor to extend credit - interest refused.

Bankruptcy Act 1966, 6.122

Queensland Bacon Pty. Ltd. v Rees (1966) 115 CLR 266 Rees v Bank of New South Wales (1964) 111 CLR 210

C.H. & E. CARR - Bankrupts

RODNEY MICHAEL EVANS and MAURICE HODGSON LYFORD as trustees of the property of Colin H. Carr and Eileen Carr, Bankrupts - Applicants

ALBANY NOMINEES PTY. LIMITED - Respondent

No. 105 of 1983

Morling J. 17 December 1987 Sydney

IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION )

) No. 105 of 1983 BANKRUPTCY DISTRICT OF THE STATE ) OF WESTERN AUSTRALIA )

RE: C.H. & E. CARR Bankrupts BETWEEN: RODNEY MICHAEL EVANS and

MAURICE HODGSON LYFORD as trustees of the

property of Colin H. Carr and Eileen Carr, Bankrupts

Applicants

AND ALBANY NOMINEES PTY. LIMITED

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER Morling J.

I? December 1987

oo

DATE OF ORDER

WHERE MADE

Sydney

ORDERS AND DECLARATIONS AS FOLLOWS:

1. Declaration that the payments made by the debtors to the creditor from 13 May 1982 until 15 September 1982 in the total sum of $31,745.17 constituted a preference, priority or advantage over the unsecured creditors of the debtors and are therefore void against the trustees.

2.

Order that Albany Nominees Pty. Limited pay to the trustees of the bankrupt estates of Colin and Eileen Carr the sum of $31,745.17.