Re Burton, L.R. v Ex Parte Wily, H.J. & Ors [1995] FCA 555

IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION ) BANKRUPTCY DISTRICT OF THE STATE ) No NB 2172 of 1993 OF NEW SOUTH WALES ) RE: LESLIE ROSS BURTON of 25 Overett Avenue Kemps Creek in the State of New South Wales EX PARTE: HUGH JENNER WILY Applicant/First Cross-Respondent BRANDOWN PTY LIMITED ACN 003 830 304 First Respondent NJW CONTRACTORS PTY LIMITED ACN 000 730 192 Second Respondent/Cross-Claimant PATRICK JAMES HALLINAN MAX DAVID RODGERS and GEORGE FRANK RODGERS Third Respondent/ Second Cross-Respondent AND EX PARTE: LESLIE ROSS BURTON Applicant HUGH JENNER WILY Respondent Coram: Davies J Date: 26 July 1995 Place: Sydney CORRIGENDA Amendments to the Reasons for Judgment delivered on 26 July 1995:- 1. Page 40 - 5th line from bottom of page - laser printer error - should read "declare them to be void through some irregularity if the deed complied substantially .." 2. Page 46, last paragraph, 2nd line. The word "noted" should be "voted". 3. Page 56, 2nd last line. The sum "$4,000" should be "$5,000". 4. Page 79, Order 2, third line. The word "the" appears twice. Delete second "the". 5. Order 3 on page 79. The name "Brandown Pty Ltd" is to be substituted for the name "NJW Contractors Pty Ltd". Associate to Justice Davies 2 August 1995

C A T C H W O R D S

BANKRUPTCY - application for declaration that a settlement of property of the bankrupt was void as against trustee in bankrutpcy - whether settlement was made within the period of 2 years before the commencement of the bankruptcy - transfer dated as executed before the commencement of the period - whether transfer made in good faith and for valuable consideration - nominal consideration given for asset which had substantial value - operation of s.120 Bankruptcy Act. BANKRUPTCY - annulment - Court must be satisfied that sequestration order ought not to have been made and that the order ought to be anulled - bankrupt was insolvent at the time of the making of the sequestration order - factors relevant to exercise of discretion under s.153B Bankruptcy Act - no point of principle raised - affairs of the bankrupt and associated companies involved inadequate documentation, fabrication of debts and disposition of assets without good faith - public interest and interest of creditors that the affairs of the bankrupt be managed by a trustee - operation of s.153B Bankruptcy Act. BANKRUPTCY - application that trustee in bankruptcy should be removed - whether trustee had acted independently in the best interests of creditors - actions taken by the trustee were reasonable in the circumstances - factors relevant to exercise of discretion under s.179 Bankruptcy Act. Bankruptcy Act 1966 (Cth) - ss.120, 153B, 179, 306 Barton v Official Receiver (1986) 161 CLR 74 Chirigakis v Deputy Commissioner of Taxation (1986) 68 ALR 527 In Re La Rosa; Ex parte Norgard v Rocom Pty Ltd (1990) 21 FCR 270 Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71 Miller v Bondi Securities (Beazley J, unreported, 2 September 1994) Pollack v Deputy Federal Commissioner of Taxation (1994) 94 ATC 4148 Re Curry; Ex parte Goldsea Pty Ltd (1992) 40 FCR 32 Re Donovan; Ex parte ANZ Banking Group Ltd (1972) 20 FLR 50 Re Sarina; Ex parte Council of the Shire of Wollondilly (1980) 43 FLR 163 Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134 Re Williams (1986) 13 FLR 10 State Bank of New South Wales v Geeport Developments Pt Limited (1991) 5 BPR 11,947 RE: LESLIE ROSS BURTON; EX PARTE HUGH JENNER WILY & ORS and EX PARTE; LESLIE ROSS BURTON and HUGH JENNER WILY NB 2172 of 1993 Davies J. 26 July 1995 Sydney