Smith v Bone, in the matter of ACN 002 864 002 Pty Ltd (in liq) [2015] FCA 319

FEDERAL COURT OF AUSTRALIA

Smith v Boné, in the matter of ACN 002 864 002 Pty Ltd (in liq) [2015] FCA 319 Citation: Smith v Boné, in the matter of ACN 002 864 002 Pty Ltd (in liq) [2015] FCA 319

Parties: MICHAEL JOHN MORRIS SMITH IN HIS CAPACITY AS LIQUIDATOR OF ACN 002 864 002 PTY LTD (IN LIQUIDATION) FORMERLY KNOWN AS PETROLINK PTY LTD and ACN 002 864 002 PTY LTD (IN LIQUIDATION) FORMERLY KNOWN AS PETROLINK PTY LTD ACN 002 864 002 v BARRY BONÉ and VALVELINK PTY LTD ACN 053 332 808

File number: NSD 1030 of 2013

Judge: GLEESON J

Date of judgment: 7 April 2015

Catchwords: BANKRUPTCY AND INSOLVENCY – whether director caused company to trade while insolvent – whether reasonable grounds for suspecting company was insolvent – whether director failed to prevent company from incurring debts when aware of reasonable grounds to suspect company was insolvent – whether reasonable person in director's position would have been aware of reasonable grounds for suspecting company was insolvent – where company made payment arrangements to repay tax debts – whether director acted honestly and ought fairly to be excused for contravention of civil penalty provision or breach of duty – amount of recoverable compensation – whether director entitled to set off – whether preferential payment made – Corporations Act 2001 (Cth), ss 588M, 588FF, 1317S, 1318

Legislation: Corporations Act 2001 (Cth), ss 95A, 436A, 553C, 588E, 588G, 588H, 588M, 588FA, 588FC, 588FE, 588FF, 588FG, 1317S, 1318 Evidence Act 1995 (Cth), ss 79(1), 140 Income Tax Assessment Act 1936 (Cth), s 222AOC Tax Administration Act 1953 (Cth), Sch 1