BWK Elders (Australia) Pty Ltd v White [2004] FCA 1611

FEDERAL COURT OF AUSTRALIA

BWK Elders (Australia) Pty Ltd v White[2004] FCA 1611 BANKRUPTCY – annulment – abuse of process – petitioner not insolvent – arrangement to avoid creditor

Bankruptcy Act 1966 (Cth) ss 55, 60(1)(b), 82(2) Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589 applied European Life Assurance Society, In re (1869) 9 LR Eq 122 applied Mottee, Re; Ex parte Mottee v Official Receiver (1977) 16 ALR 129 applied In the matter of the bankrupt estates of PETER JOSEPH ANDERSON, MATT ILLMARI KAINE and GRAEME JOHN MOYLE BWK ELDERS (AUSTRALIA) PTY LTD v CLYDE WHITE in his capacity as trustee of the bankrupt estate of PETER JOSEPH ANDERSON, MATT ILLMARI KAINE and GRAEME JOHN MOYLE ; PETER JOSEPH ANDERSON, MATT ILLMARI KAINE and GRAEME JOHN MOYLE V1139 of 2004 FINKELSTEIN J 10 DECEMBER 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V1139 of 2004

In the matter of the bankrupt estates of PETER JOSEPH ANDERSON, MATT ILLMARI KAINE and GRAEME JOHN MOYLE

BETWEEN: BWK ELDERS (AUST) PTY LTD

Applicant

AND: CLYDE WHITE AS TRUSTEE OF PETER JOSEPH ANDERSON, MATT ILLMARI KAINE and GRAEME JOHN MOYLE

First Respondent

PETER JOSEPH ANDERSON

Second Respondent

MATT ILLMARI KAINE

Third Respondent

GRAEME JOHN MOYLE

Fourth Respondent

JUDGE: FINKELSTEIN J

DATE OF ORDER: 10 DECEMBER 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The bankruptcy of Peter Joseph Anderson be annulled. 2. The bankruptcy of Matt Illmari Kaine be annulled. 3. The bankruptcy of Graeme John Moyle be annulled. 4. The costs of Clyde Peter White incurred in acting as trustee in bankruptcy of Peter Joseph Anderson prior to the date of this order (including in relation to this application) be costs payable out of the bankrupt estate of Peter Joseph Anderson created by sequestration order in proceedings numbered VID1138 of 2004, payable with the same priority as if they had been incurred in the bankruptcy created by that sequestration order. 5. The costs of Mr White incurred in acting as trustee in bankruptcy of Matt Illmari Kaine prior to the date of this order (including in relation to this application) be costs payable out of the bankrupt estate of Matt Illmari Kaine created by sequestration order in proceedings numbered VID1138 of 2004, payable with the same priority as if they had been incurred in the bankruptcy created by that sequestration order. 6. The costs of Mr White incurred in acting as trustee in bankruptcy of Graeme John Moyle prior to the date of this order (including in relation to this application) be costs payable out of the bankrupt estate of Graeme John Moyle created by sequestration order in proceedings numbered VID1138 of 2004, payable with the same priority as if they had been incurred in the bankruptcy created by that sequestration order. 7. The applicants costs of this application be payable jointly from the bankrupt estates of Peter Joseph Anderson, Matt Illmari Kaine and Graeme John Moyle created by sequestration order in proceedings numbered VID1138 of 2004. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.