D Pty Ltd (in liq) v Calas (Trustee), in the matter of D Pty Ltd (in liq) [2016] FCA 1409

FEDERAL COURT OF AUSTRALIA

D Pty Ltd (in liq) v Calas (Trustee), in the matter of D Pty Ltd (in liq) [2016] FCA 1409 File number: VID 83 of 2016

Judge: MOSHINSKY J

Date of judgment: 25 November 2016

Catchwords: CORPORATIONS – winding-up – voidable transactions – unreasonable director-related transactions – where Family Court of Australia made consent orders creating a charge over property of a company as security for obligations of the husband – where company subsequently went into liquidation – where liquidator contended that the charging of property pursuant to an agreement to settle the Family Court proceeding was an unreasonable director-related transaction – whether a charge was created by agreement – whether, if such a charge was created, a reasonable person in the company's circumstances would not have entered into the transaction – whether appropriate to make declarations sought in circumstances where declarations would conflict or appear to conflict with orders of the Family Court

Legislation: Bankruptcy Act 1966 (Cth), ss 120, 121, 122 Corporations Act 2001 (Cth), ss 6A, 9, 471B, 588FB, 588FDA, 588FE, 588FF, 588FG Family Law Act 1975 (Cth), ss 78, 79, 90AE, 121 Transfer of Land Act 1958 (Vic), s 89A

Cases cited: Ansell Ltd v Davies (2008) 219 FLR 329; [2008] SASC 203 BP Australia Ltd v Brown (2003) 58 NSWLR 322 Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd (2011) 81 NSWLR 47 Capital Finance Australia Ltd v Tolcher (2007) 245 ALR 528 Cashflow Finance Pty Limited (in liq) v Westpac Banking Corporation [1999] NSWSC 671 Crowe-Maxwell v Frost (2016) 91 NSWLR 414 Cussen v Sultan (2009) 74 ACSR 496; [2009] NSWSC 1114 Golden Heritage Golf Pty Ltd (in liq) (recs and mgrs apptd) v Sun (2016) 113 ACSR 550; [2016] VSC 167 Kalls Enterprises Pty Ltd (in liq) v Baloglow (2007) 63 ACSR 557; [2007] NSWCA 191 Kazar, in the matter of Frontier Architects Pty Limited (2010) 81 ACSR 158; [2010] FCA 1381 Lewis (as liq of Doran Constructions Pty Ltd (in liq)) v Doran (2005) 219 ALR 555 Megalos & Katsaros [2015] FamCA 1094 New Cap Reinsurance Corp Ltd v AE Grant (2009) 257 ALR 740 Official Trustee in Bankruptcy v Higgins (2000) 109 FCR 1 Official Trustee in Bankruptcy v Mateo (2003) 127 FCR 217 Re Ashington Bayswater Pty Ltd (in liq) [2013] NSWSC 1008 Re Baxter; Ex parte The Official Receiver v Baxter (1986) 10 FCR 398 Re Sabri; Ex parte Sabri v O'Brien (1995) 60 FCR 131 Smith (in his capacity as liquidator of Action Paintball Games Pty Ltd) (in liq) v Starke (No 2) (2015) 109 ACSR 145; [2015] FCA 1119 Super Art Australia Pty Ltd v Foden [2014] FCA 1168 Tosich Construction Pty Ltd (in liq) v Tosich (1997) 78 FCR 363 Vasudevan v Becan Constructions (Australia) Pty Ltd (2014) 41 VR 445 Weaver v Harburn (2014) 103 ACSR 416; [2014] WASC 227