Re Allen, G.D. v. Ex parte Everton Hills Nominees P/L [1994] FCA 899

JUDGMENT No. sae Sactctul ncct Ee CATCHWORDS

Bankruptcy - preferences - payment of rental arrears - sale of one business to meet debts

Bankruptcy Act 1966 s. 122

a arris v.Refrigeration Pa id Lt (1985) 8 PCR S86

td. v. Associated Blue tores Ltd.

Liquidation) (1948) 76 CLR. 463, 477 Taylor v. White (1964) 110 C.LR. 129, 136

29 NOV 1994

FEDERAL COURT OF

AUSTRALIA PRINCIPAL REGISTRY

No. OB 964 of 1993 Kiefel J.. Brisbane, 28 November 1994

JUDGE MAKING ORDER: Kiefel J. DATE OF ORDER: 28 November 1994 WHERE MADE: Brisbane

MINUTES OF ORDER

THE COURT DECLARES THAT:

1. The payment made by the bankrupt to the respondent of $30,697.50 on 14 May 1993 is void as against the trustee.

THE COURT ORDERS THAT:

2. The respondent pay to the trustee, J. Arscott Stevenson, the sum of $30,697.50 together with interest thereon at 10% per annum from 5 July 1994 to the date of payment.

3. The respondent pay the trustee's costs of and incidental to this application to be taxed if not agreed.

NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

RE: GRAHAM DAVID ALLEN ; Applicant EX PARTE EVERTON HILLS NOMINEES PTY LTD Respondent CORAM: siKiefel J

DATE: 28 November 1994 PLACE: Brisbane

REASONS FOR JUDGMENT

The trustee of the property of Graham David Allen seeks a declaration that a payment of $30,697.50 made to Everton Hills Nominees Pty Ltd ("the respondent") on 14th May 1993 constituted a preference within the meaning of s. 122

of the Bankruptcy Act 1966 (Cth) and an order for payment of that sum.

The Bankrupt's estate was sequestrated on 20 May 1993. The payment made to the respondent was in satisfaction of arrears of rental then due to it. That the payment was made for valuable consideration within the meaning of s. 122(2)(a) was not in contention. The respondent, whilst conceding that the payment has the effect of a preference, however contended that it was one made in good faith and in