Rodgers v Schmierer [2003] FCA 386

FEDERAL COURT OF AUSTRALIA

Rodgers v Schmierer [2003] FCA 386 BANKRUPTCY – appointment of insolvency practitioners as administrators to family company engaged in transportation business – subsequent appointment of same practitioners as administrators pursuant to deed of company arrangement – insolvency practitioners provided with deeds of indemnity from directors of family company supported by second mortgage over directors' home to secure practitioners' remuneration and out-of-pocket expenses and exposure as administrators to claims of creditors – subsequent receipt by administrators of funds within scope of indemnities and second mortgage – whether transfers of property to insolvency practitioners at market value constituted by indemnities and second mortgage void – whether possible alternative claims properly conceived in law.

Bankrupt Act 1966 (Cth) ss 58, 120(1) and (7) Corporations Act 2001 (Cth) s 471B Corporations Law (NSW) Part 5.3A, ss 433A, 435A 436A(1), 437A, 438A-443C, 439A, 443A, 443D, 444E(3) and 448B Income Tax Assessment Act 1936 (Cth) s 222AOE

J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 cited Victorian Producer's Co-Op Co Ltd v Kenneth [1999] CLR 546 FCA 1488 referred to Australian Woollen Mills Pty Ltd v The Commonwealth (1953-1954) 92 CLR 424 applied Re Barton; ex parte Official Trustee (1986) 192 CLR 592 referred to Official Trustee in Bankruptcy v Arcadiou (1985-1986) 8 FCR 4 referred to Pao On v Lau Yiu Long [1980] AC 614 applied Barclays Bank Ltd v Quistclose Investments Ltd [1970] ACT 567 referred to Re Australian Home Finance Pty Ltd [1956] VLR 1 referred to Re Staff Benefits Pty Ltd [1979] 1 NSWLR 207 referred to Carreras Rothmans Ltd v Freeman Mathews Treasure Ltd [1985] Ch 207 referred to Sutherland v Brien & Anor 1999] 149 FLR 321 considered Contract Law in Australia (3rd ed) Carter and Harland at [309] Lewis' Australian Bankruptcy Law (11th ed) Denis Rose at p 180 PETER DAVID RODGERS as Trustee of the Bankrupt Estate of Frederick Cecil Reader and Dianne Jean Reader v TREVOR JOHN SCHMIERER and ADRIAN STEWART DUNCAN N 7312 OF 2001 CONTI J 30 APRIL 2003 SYDNEY