Victorian Producer's Co-Operative Co Ltd v Kenneth [1999] FCA 1488

FEDERAL COURT OF AUSTRALIA

Victorian Producers' Co-Operative Co Ltd v Kenneth [1999] FCA 1488

BANKRUPTCY – whether transfer of property, being live stock, under a mortgage of live stock is void against the trustee – whether value of forbearance to recover indebtedness of debtors is less than the market value of the live stock transferred under the mortgage Bankruptcy Act 1966 (Cth) ss 120, 139ZQ and 139ZS

Halse v Norton (1997) 76 FCR 389 – cited Ogilvie v Adams (1981) VR 1041 – distinguished Sutherland v Brien [1999] NSWSC 155 - considered

VICTORIAN PRODUCERS' CO-OPERATIVE COMPANY LIMITED V KENNETH AND OTHERS

VG 7754 OF 1998

JUDGE: MERKEL J

PLACE: MELBOURNE

DATE: 29 OCTOBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 7754 OF 1998

IN THE MATTER OF the bankrupt estate of Robert William Heather and Martha Faye Heather

BETWEEN: VICTORIAN PRODUCERS' CO-OPERATIVE COMPANY LIMITED (ACN 004 059 607)

Applicant

AND: PHILIP KENNETH AGGS in his capacity as Trustee of the bankrupt estate of Robert William Heather and

Martha Faye Heather

First Respondent

GEORGE LIONEL CADDY in his capacity as Official Receiver for the Bankruptcy District of the Australian Capital Territory

Second Respondent

PHILIP KENNETH AGGS in his capacity as Trustee of the bankrupt estate of Robert William Heather and

Martha Faye Heather

Cross-Claimant

VICTORIAN PRODUCERS' CO-OPERATIVE COMPANY LIMITED (CAN 004 059 607)

Cross-Respondent JUDGE: MERKEL J

DATE OF ORDER: 29 OCTOBER 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The Application dated 1 October 1998 be dismissed. 2. A declaration be made that the transfer of property made under the mortgage granted by RW and MF Heather to the applicant dated 14 November 1995 is void against the first respondent. 3. The applicant pay to the first respondent the sum of $34,725.39. 4. The applicant pay the respondents' taxed costs of the Application and the Cross Claim dated 12 February 1999. 5. Reserve liberty to apply in respect of interest. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.