Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Burness, In the matter of Denward Lane Pty Ltd (ACN 065 418 411) (In Liquidation) [2009] FCA 893
PAUL BURNESS (AS LIQUIDATOR OF DENWARD LANE PTY LTD (ACN 065 418 411) (IN LIQUIDATION)) v SUPAPRODUCTS PTY LTD (ACN 057 134 522)
VID 203 of 2008
GORDON J
18 AUGUST 2009
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY VID 203 of 2008
GENERAL DIVISION
IN THE MATTER OF DENWARD LANE PTY LTD (ACN 065 418 411) (IN LIQUIDATION) BETWEEN: PAUL BURNESS (AS LIQUIDATOR OF DENWARD LANE PTY LTD (ACN 065 418 411) (IN LIQUIDATION))
Plaintiff
AND: SUPAPRODUCTS PTY LTD (ACN 057 134 522)
Defendant
JUDGE: GORDON J
DATE OF ORDER: 18 AUGUST 2009
WHERE MADE: MELBOURNE
THE COURT ORDERS THAT:
1. The application is dismissed. 2. The Plaintiff is to pay the Defendant's costs of the application. 3. Liberty to apply within 7 days. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY VID 203 of 2008
GENERAL DIVISION
IN THE MATTER OF DENWARD LANE PTY LTD (ACN 065 418 411) (IN LIQUIDATION) BETWEEN: PAUL BURNESS (AS LIQUIDATOR OF DENWARD LANE PTY LTD (ACN 065 418 411) (IN LIQUIDATION))
Plaintiff
AND: SUPAPRODUCTS PTY LTD (ACN 057 134 522)
Defendant
JUDGE: GORDON J
DATE: 18 AUGUST 2009
PLACE: MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION 1 Supaproducts Pty Ltd (ACN 057 134 522) ("the Defendant") manufactures and supplies building hardware by way of sale and hire to builders. Between 1997 and 23 June 2005 (a period of some eight years), the Defendant supplied building hardware to Denward Lane Pty Ltd (ACN 065 418 411) ("Denward Lane"). At all relevant times, Denward Lane had two directors – Mr Stephen Smith and, his father, Mr Keith William Smith. 2 On 13 July 2005, Denward Lane was wound up and Paul Burness ("the Liquidator") was appointed liquidator of Denward Lane. The relation back date was 19 April 2005, being the date application was made to wind up Denward Lane. The relation back period commenced on 19 October 2004 (the "Relation Back Period"): s 588FE(2) of the Corporations Act 2001 (Cth) ("the Act"). 3 The following facts and matters are not in dispute: 1. Denward Lane was insolvent at all times during the Relation Back Period; 2. the dealings between the Defendant and Denward Lane took place under a running account (see Sutherland (as liquidator of Sydney Appliances Pty Ltd (in liq)) v Eurolinx Pty Ltd (2001) 37 ACSR 477 at [142], [148] – [163]; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 286; Airservices Australia v Ferrier (1995) 185 CLR 483 at 492, 502 – 504; Sutherland v Lofthouse (2007) 64 ACSR 655 at [35]); 3. during the Relation Back Period, the peak indebtedness of Denward Lane's account with the Defendant was $203,128.35; 4. the Defendant received the following payments in reduction of the running account balance from Denward Lane Pre Cast Panels Pty Ltd (ACN 112 550 848) ("Pre Cast Panels"), not Denward Lane, during the Relation Back Period: Date Amount 10/06/05 $39,241.70 28/06/05 $33,164.41 12/07/05 $42,127.62
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