Smith v Bone, in the matter of ACN 002 864 002 Pty Ltd (in liq) (No 2) [2015] FCA 389

FEDERAL COURT OF AUSTRALIA

Smith v Boné, in the matter of ACN 002 864 002 Pty Ltd (in liq) (No 2) [2015] FCA 389 Citation: Smith v Boné, in the matter of ACN 002 864 002 Pty Ltd (in liq) (No 2) [2015] FCA 389

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 BONE and VALVELINK PTY LTD ACN 053 332 808

File number: NSD 1030 of 2013

Judge: GLEESON J

Date of judgment: 24 April 2015

Catchwords: BANKRUPTCY AND INSOLVENCY – where director caused company to trade while insolvent – whether declaratory relief ought to be awarded – amount of pre-judgment interest to be awarded – costs – no declaration made – interest under s 51A(1) of the Federal Court of Australia Act 1976 (Cth) not payable on so much of the amount recoverable under s 588M(2) of the Corporations Act 2001 (Cth) as is calculated by reference to interest on unpaid tax

Legislation: Corporations Act 2001 (Cth), ss 588M, 588FF, 1317E, 1317J Evidence Act 1995 (Cth), ss 91, 92, 93 Supreme Court Act 1970 (NSW), s 94(2)(a) Federal Court Rules 2011 (Cth), r 36.08(2) Federal Court of Australia Act 1976 (Cth), ss 21, 51A

Cases cited: Bans Pty Ltd v Bing (1995) 36 NSWLR 435 Commonwealth of Australia v BIS Cleanaway Limited [2007] NSWSC 1075 Cretazzo v Lombardi (1975) 13 SASR 4 Dr Martens Australia Pty Ltd v Higgins Holdings Pty Ltd (No 2) [2000] FCA 602 Edenden v Bignell [2007] NSWSC 1122 Kazar v Kargarian [2011] FCAFC 136; (2011) 197 FCR 113 Powell v Fryer [2001] SASC 59; (2001) 37 ACSR 589 Smith in his capacity as liquidator of ACN 002 864 002 Pty Ltd (in liquidation) formerly known as Petrolink Pty Ltd v Boné [2015] FCA 319 Warramunda Village Inc v Pryde [2001] FCA 61; (2001) 105 FCR 437