Worrell (Trustee) v Kerr-Jones [2002] FCA 1090

FEDERAL COURT OF AUSTRALIA

Worrell (Trustee) v Kerr-Jones [2002] FCA 1090 BANKRUPTCY– appeal from decision of Federal Magistrate dismissing an application for a declaration that a payment of $95,000 by bankrupt to former wife from bankrupt's superannuation fund prior to commencement of bankruptcy is void as against Trustee – whether superannuation funds were otherwise available to creditors – whether payment was a payment by the bankrupt – whether payment resulted in a voidable preference to respondent over other creditors WORDS & PHRASES – "moneys not otherwise available to creditors" Bankruptcy Act 1966 (Cth), s 116(2), s 122 Bankruptcy Legislation Amendment Act 1996 (Cth) Schedule 1, Item 458 Federal Court of Australia Act 1976 (Cth), s 51A Federal Court Rules, O 35 r 8 Ramsay v National Australia Bank Limited [1989] VR 59, applied Sheahan v Carrier Air Conditioning Pty Ltd (1996-1997) 189 CLR 407, distinguished G & M Aldridge Pty Ltd v Walsh (2001) 203 CLR 662, followed IVOR WORRELL as trustee of the bankrupt estate of JOHN ANTHONY JONES v ALISON ROBIN KERR-JONES No Q 31 of 2002 SPENDER J BRISBANE 6 SEPTEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 31 of 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: IVOR WORRELL as trustee of the bankrupt estate of JOHN ANTHONY JONES

APPELLANT

AND: ALISON ROBIN KERR-JONES

RESPONDENT

JUDGE: SPENDER J

DATE OF ORDER: 6 SEPTEMBER 2002

WHERE MADE: BRISBANE

THE COURT DECLARES THAT: (1) The payment of $95,000 (ninety-five thousand dollars) made to the respondent, Alison Robin Kerr-Jones, on 7 August 1996 for and on behalf of the bankrupt, John Anthony Jones, is void as against Ivor Worrell, the Trustee of the bankrupt estate of John Anthony Jones, pursuant to s 122 of the Bankruptcy Act 1966 (Cth). THE COURT ORDERS THAT: (2) The respondent pay the sum of $95,000 (ninety-five thousand dollars) to Ivor Worrell as Trustee of the bankrupt estate of John Anthony Jones, together with interest from 11 May 2000 to 6 September 2002 at a rate of 9% per annum. (3) The respondent pay the appellant's costs of the appeal and of the hearing before the Federal Magistrate, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.