Federal Court of Australia
FEDERAL COURT OF AUSTRALIA CORPORATIONS - recovery of property for the benefit of creditors of an insolvent company - "uncommercial transaction" - meaning and operation of s 588FB. APPEAL AND NEW TRIAL - circumstances where appellant was bound by conduct of case below. WORDS AND PHRASES - "it may be expected that". Corporations Law, ss 588FB, 588FC, 588FE and 588FF Tosich Construction Pty Ltd (in liq) v Tosich (1997) 23 ACSR 466 Temples Wholesale Flower Supplies Pty Ltd v Commissioner of Taxation (1991) 29 FCR 93 Coulton v Holcombe (1986) 162 CLR 1 University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 Crown Bedding Co Ltd v Inland Revenue Commissioners [1946] 1 All ER 452 Arnold v Queensland (1987) 73 ALR 607 Estee Lauder Pty Ltd v Federal Commissioner of Taxation (1988) 80 ALR 314
TOSICH CONSTRUCTION PTY LTD (IN LIQUIDATION) & ANOR v MELANIE TOSICH NG 345 of 1997
Burchett, Foster and North JJ Sydney 22 September 1997
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NG 345 of 1997
BETWEEN: TOSICH CONSTRUCTION PTY LTD (IN LIQUIDATION)
Appellants
AND: MELANIE TOSICH
Respondent
JUDGE(S): BURCHETT, FOSTER AND NORTH JJ
DATE OF ORDER: 22 september 1997
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NG 345 of 1997
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: TOSICH CONSTRUCTION PTY LTD (IN LIQUIDATION) and HUGH JENNER WILY
Appellants
AND: MELANIE TOSICH
Respondent
JUDGE(S): BURCHETT, FOSTER and NORTH JJ
DATE: 22 september 1997
PLACE: SYDNEY
REASONS FOR JUDGMENT THE COURT Among the provisions contained in the Corporations Law for the recovery of property for the benefit of the creditors of an insolvent company are ss 588FB (defining "an uncommercial transaction of the company"), 588FC (defining "an insolvent transaction of the company"), 588FE(3) (rendering voidable a transaction that is both an insolvent transaction and an uncommercial transaction of a company which is being wound up, where it was entered into during the period of two years ending on the relation-back day as defined in s 9) and s 588FF (enabling the Court to make orders in respect of transactions voidable under s 588FE, including an order directing a person to pay to the company money paid under the transaction). For the purpose of these provisions, "transaction" has the wide meaning indicated in s 9, which includes "a payment made" by the company. The present appeal concerns these provisions, and in particular the meaning and effect of s 588FB, which is in the following terms:
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