Re Clarke, E.C. v. Ex parte Taylor, A.R. [1988] FCA 87

Not for distribution

JUDGMENT No. "© /7 Bo

IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION

QLD NO. E129 of 1984

BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND

RE: ERNEST CHARLES CLARKE

EX PARTE: ALAN RICHARD TAYLOR as Trustee of the property of the abovenamed bankrupt

4 MARCH 1988

REASONS FOR JUDGMENT

erty of Ernest Tharles Tlarke, a bankrupt,

by

he conveyarce or transfer by Mr. Clarke of B A ow rh

raudulent disposition 2f property within the meaning of s.121 of the Bankruptey Act 1966, and as sech vas and cemains yoid as against Mr. Taylar, ar, aiternatively, tnat the conveyance or transfer constituted a voreference within ¢.122 of

the Bankruptcy Act 1966, with the same consequence.

The present registered proprietors of that house property are Allan John Clarke and Wendy Pauline Clarke as tenants-1in-common in equal shares. They became registered by transfer which was produced to the Registrar of Titles on 30 May 1983 and registered on 11 June 1983. A bill of mortgage granted

by them to National Commercial Banking Corporation of Australia

Limited ("National Bank") was also produced on 30 May 1983 and registered on 11 July 1983. Allan John Clarke is a son of the

bankrupt and Wendy Pauline Clarke 1s a daughter.

There are a number of matters associated with the

transfer which are relevant:

As is apparent, 1t was a family transaction. At no time was any formal contract entered into. On any view of the matter, there has been considerable delay before any relevant documents were stamped. Subsequent to the transfer, Mr. Clarke, the bankrupt, continued in possession. The memorandum of transfer on 1ts face indicates an ordinary contract of sala for a consiéeration of $46,009 O94, However, what 15 asserted by the

respondents to be the consideration for the transfer ais the