ICM Agriculture Pty Ltd v Young [2009] FCA 109

FEDERAL COURT OF AUSTRALIA

ICM Agriculture Pty Ltd v Young [2009] FCA 109

BANKRUPTCY – bankruptcy notice – appeal from Federal Magistrates Court's order setting aside bankruptcy notice – nature of evidence of debtor's counter-claim before Federal Magistrate – affidavit verifying statement of claim in proceeding brought by debtor against judgment creditor in District Court – statement of claim and affidavit verifying tendered in evidence before Federal Magistrate, but affidavit not read – distinction between tendering affidavit and reading it – conclusory nature of allegations made in statement of claim – affidavit verifying would not have been admissible if attempted to be read – assignment of bare cause of action for no consideration by company to debtor – whether debtor had a genuine commercial interest sufficient to support assignment – whether assignment was a breach of fiduciary duty owed by debtor as a director of assignor company, to that company. PERSONAL PROPERTY – choses in action – assignment of bare right of action – need for assignee to have a genuine commercial interest to support assignment. Bankruptcy Act 1966 (Cth) s 40(1)(g)

Bhagat v Global Custodians Ltd [2002] FCAFC 51followed Castle Constructions Pty Ltd v Fekala Pty Ltd (2006) 65 NSWLR 648 Commonwealth v Ling (1993) 44 FCR 397 cited Ebert v The Union Trustee Co of Australia Ltd (1960) 104 CLR 346 followed Glew v Harrowell of Hunt and Hunt Lawyers [2003] FCA 373 followed Hadley v Baxendale (1854) 9 Exch 341(156 ER 145) applied Monk v The Australian & New Zealand Banking Group Limited (1994) 34 NSWLR 148followed National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 cited Re Daley; ex parte National Australia Bank Ltd (1992) 37 FCR 390 distinguished Re Timothy's Pty Ltd and the Companies Act [1981] 2 NSWLR 706 cited Salfinger v Niugini Mining (Australia) Pty Ltd (No 3) [2007] FCA 1532 cited Trendtex Trading Corporation v Credit Suisse [1982] AC 679 cited