Tolcher v Capital Finance Australia Limited [2006] FCA 1804

FEDERAL COURT OF AUSTRALIA

Tolcher v Capital Finance Australia Limited [2006] FCA 1804 CORPORATIONS – whether transactions relating to payments made to the first respondent should be construed as preferential, uncommercial or voidable transactions – whether debtor-creditor relationship existed between first respondent and company subsequently declared insolvent at the time the challenged payments were made - whether payments were made to first respondent by company or another entity – whether totality of arrangements and payments should be construed as a "transaction" – whether statutory defence can apply on basis that the respondents had no reasonable grounds to suspect that the company was insolvent. Corporations Act 2001 (Cth), ss 9, 588FA, 588FB, 588FC, 588FE, 588FF and 588FG

McDonald v Dennys Lascelles Limited (1933) 48 CLR 457, referred to Box Valley Pty Limited v Kidd [2006] NSWCA 26, referred to Jelin Pty Ltd v Johnson (1987) 5 ACLC 463, referred to Molit (No. 55) Pty Ltd v Lam Soon (Australia) Pty Limited (1996) 21 ACSR 157, referred to Re Emanuel (No. 14) Pty Ltd (in liq); Macks & Anor v Blacklaw & Shadforth Pty Ltd (1997) 147 ALR 281, followed V.R. Dye & Co v Peninsula Hotels Pty Ltd (in liq) [1999] 3 VR 201, followed Mann v Sangria Pty Ltd (2001) 38 ACSR 307, followed Walsh v Natra Pty Limited (2000) 1 VR 523, followed Sheldrake v Paltoglou [2006] QCA 52, cited Jones v Dunkel (1959) 101 CLR 298, followed Cook's Construction Pty Limited v Brown [2004] 49 ACSR 62, followed RAYMOND GEORGE TOLCHER (AS LIQUIDATOR OF LLOYD SCOTT ENTERPRISES PTY LTD) (IN LIQUIDATION) AND LLOYD SCOTT ENTERPRISES PTY LTD (IN LIQUIDATION) (ACN 002 739 773) v CAPITAL FINANCE AUSTRALIA LIMITED (ACN 069 663 136) AND CAPITAL CORPORATE FINANCE LIMITED (ACN 002 888 048) NSD 979 OF 2004

TAMBERLIN J