Benson v Cook [2001] FCA 1684

FEDERAL COURT OF AUSTRALIA

Benson v Cook [2001] FCA 2001 FCA 1684

BANKRUPTCY -whether payments made on behalf of appellantto the trustees of three superannuation funds were "settlements" of property within the meaning of s 120 of the Bankruptcy Act 1966 (Cth) - whether payments were "dispositions" of property of the appellant within the meaning of s 120(8) - whether each trustee was a "purchaser for valuable consideration" - whether there was a disposition of property of the appellant within two years before the commencement of the bankruptcy and if so, whether that disposition was not in favour of a "purchaser for valuable consideration" - whether s 116(2)(d) of the Bankruptcy Act 1966 (Cth) applied so that payments were excluded from the operation of ss 120 and 121

WORDS & PHRASES "settlement", "disposition", "purchaser in good faith and for valuable consideration" Bankruptcy Act 1966 (Cth) ss 116 (2)(d), 120 (1), (2), (8), 121(1), (2) Income Tax Assessment Act 1936 (Cth)ss 27A, 27D, 221A, 221C Occupational Superannuation Standard Act 1987 (Cth) s 3(1) Superannuation Industry (Supervision) Act 1993 (Cth) ss 116(2)(d), 116(5 Barton v Official Receiver (1984) 4 FCR 380 applied Barton v Official Receiver (1986) 161 CLR 75 applied Caboche v Ramsay (1993) 119 ALR 215 referred to Cannane v J Cannane Pty Ltd (In Liq) (1998) 192 CLR 557 applied Century 21 (South Pacific) Pty Ltd (In Liquidation) v Century 21 Real Estate Corporation (1996) 136 ALR 687 referred to Charters, In Re; Trustee, Ex parte (1923) 8 B & CR 94 cited Ex parte Hilman. In re Pumfrey (1879) 10 ChD 622 referred to In re Abbott; Ex parte Trustee of the Property of the Bankrupt v Abbott [1983] 1 Ch 45 applied In re Pope. Ex parte Dicksee [1908] 2 KB 169 referred to Morrison [1965] 1 WLR 1498 referred to McGain v Commissioner of Taxation (1965) 112 CLR 523 referred to McGain v Federal Commissioner of Taxation (1966) 116 CLR 172 referred to Mahoney v Commissioner of Taxation (1967) 41 ALJR 232 followed NM Superannuation Pty Ltd v Young (1993) 41 FCR 182 referred to Norgard v Rocom Pty Ltd (Federal Court of Australia, 16 August 1990, unreported) followed Official Trustee in Bankruptcy v Mitchell (1992) 38 FCR 364 applied Official Trustee in Bankruptcy v Martin (1990) 24 FCR 504 cited Official Trustee in Bankruptcy v Racovitis (Federal Court of Australia, 28 November 1995, unreported) followed Official Trustee in Bankruptcy v Trevor Newton Small Superannuation Fund Pty Ltd [2001] FCA 1267 referred to Roache v Australian Mercantile Land & Finance Co Ltd (No. 2) (1966) 1 NSWR 384 referred to Re Coram; Ex parte Official Trustee in Bankruptcy v Inglis (1992) 36 FCR 250 applied Re Densham (A Bankrupt); Ex parte Trustee of the Property of the Bankrupt v The Bankrupt (1975) 1 WLR 1519 referred to Re Hyams; Official Receiver v Hyams (1970) 19 FLR 232 referred to Re Kastropil; Ex parte Official Trustee in Bankruptcy (1990) 21 FCR 270 cited Re La Rosa; Ex parte Norgard v Rocom Pty Ltd (1990) 93 ALR 571 referred to Re Norgard (Full Federal Court, 16 August 1990, unreported) referred to Re Vansittart; Ex parte Brown [1893] 1 QB 181 cited Re Ward; Official Trustee v Dabnas Pty Ltd (1984) 3 FCR 112 cited Scott v Commissioner of Taxation (Cth) (No 2) (1996) 40 ALJR 265 applied Walsh v Salzer (2000) VSCA 228 cited Williams v Lloyd (1934) 50 CLR 341 cited