Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Cuthbertson & Richards Sawmills Pty Ltd v Thomas [1999] FCA 315
CORPORATIONS LAW – winding up – floating charge created within six months before relation-back day – whether company solvent immediately after creation of charge – whether charge secured the amount of a liability under an obligation undertaken on behalf of, or for the benefit of the company.
Corporations Law 1989 (Cth), ss 9, 95A(1), 588FJ(1), (2)(c) and (3)
The Queen v Toohey; ex parte Attorney-General (N.T.) (1980) 145 CLR 374 cited
The King v Porteus; ex parte Federated Clerks Union of Australia (1949) 79 CLR 428 referred to
Federal Commissioner of Taxation v Commonwealth Bank of Australia (1992) 105 ALR 294 cited
Walplan Pty Ltd v Wallace (1985) 8 FCR 27 referred to Re Orleans Motor Co Ltd [1911] 2 Ch 41 referred to Re Matthew Ellis Ltd [1933] Ch 458 (C.A.) referred to Re Destone Fabrics Ltd [1941] Ch 319 referred to Pennywise Smart Shopping Australia Pty Ltd (in liq) v Sommer & Co Pty Ltd (1992) 11 ACLC 31 referred to
Gillespie v City of Glasgow Bank (1879) 4 App Cas 632 referred to
Murray v King (1984) 4 FCR 1 referred to
CUTHBERTSON & RICHARDS SAWMILLS PTY LTD v
GAVIN FREDERICK CRICHTON THOMAS
AG 66 of 1998
HEEREY, CARR & MANSFIELD JJ
30 MARCH 1999
MELBOURNE (HEARD IN SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY AG 66 of 1998
On appeal from a single judge of the Supreme Court
of the Australian Capital Territory
BETWEEN: CUTHBERTSON & RICHARDS SAWMILLS PTY LTD
Appellant
AND: GAVIN FREDERICK CRICHTON THOMAS
Respondent
JUDGES: HEEREY, CARR & MANSFIELD JJ
DATE OF ORDER: 30 MARCH 1999
WHERE MADE: MELBOURNE (HEARD IN SYDNEY)
THE COURT ORDERS AND DECLARED THAT: 1. The appeal be allowed. 2. The judgment of 7 July 1998 be set aside. 3. The charge undated but executed on or about 11 November 1994 by Glenwood Cottages Pty Limited ACN 064 629 018 in favour of the appellant is valid and secures repayment of the sum of $350,000 paid by the appellant to Westpac Banking Corporation on or about 1 March 1995. 4. The respondent pay the appellant's costs of the appeal and at first instance. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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