Zoureff, Pearl v Apel, Isaac & Anor [1998] FCA 258

FEDERAL COURT OF AUSTRALIA BANKRUPTCY - Deed of arrangement - whether statement of affairs to creditors omitted a material particular - whether deed of arrangement entered into to defeat the interests of a particular creditor - where omission of trust distribution alleged - whether appropriate to view one trust in a network of trusts in isolation - alleged omission of entitlement to partnership drawings where such drawings limited by covenant with creditor - whether omission of right of contribution from partners material. BANKRUPTCY - Deed of arrangement - principles governing exercise of jurisdiction to set aside or terminate - meaning of "in the interests of creditors to do so" where distinct classes of creditors with divergent interests - whether partnership creditors were entitled to consider the consequences of the debtor's bankruptcy upon their continuing ability to recover from the debtor's co-partners - whether differential impact of the Deed so unfair and unreasonable in its effect as between the classes as to warrant it being declared void. Bankruptcy Act 1966 (Cth) s 64ZE, s 141, s 222, s 236(1)(b) and (c), s 222, s 223A, s 237(2), Re Bendel; ex parte Low Lippmann (Federal Court of Australia, April 19, 1996 Merkel J) Re Cufari; Ex parte Commissioner of Taxation v Huppatz (1992) 34 FCR 544 at 549 Re Doukidis; Ex parte Consolidated Constructions Pty Ltd v Melson (Federal Court, 26 June 1985, Toohey J) Re Burns; Ex parte National Mutual Life Association of Australasia Ltd (1992) 39 FCR 477 (applied) Chiragakis v Deputy Commissioner of Taxation, (1986) 68 ALR 527 (applied) Augustyn v Putnin (1988) 83 ALR 514 (applied) Ex parte Russell; In Re Robins (1883) 22 ChD 778 (referred) Paton v Campbell Capital Ltd (1993) 46 FCR 30 (referred) NZI Capital Corporation v Lancaster (1991) 30 FCR 441 (referred) Re Nassar; Advance Bank Australia Ltd v Nassar (Federal Court, 21 December 1994, von Doussa J) (applied) Khera v National Australia Bank Ltd (1996) 141 ALR 416 (applied) Re Gye and Perkes; Ex parte McIntyre (1989) 89 ALR 460 (considered) Ex parte Russell; In Re Robins (1883) 22 ChD 778 (referred) Vatcher v Paull [1915] AC 372 (referred) Paton v Campbell Capital Ltd (1993) 46 FCR 30 (referred) NZI Capital Corporation v Lancaster (1991) 30 FCR 441 (referred) PEARL ZOUREFF (Applicant) v ISAAC APEL (First Respondent), JAMES PATRICK DOWNEY (Second Respondent) VG 7522 of 1997 FINN J CANBERRA (HEARD IN MELBOURNE) 11 MARCH 1998