Cook v Benson [2003] HCA 36

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE AND HEYDON JJ

PAUL JOHN COOK (As Trustee of the APPELLANT

property of Peter Robert Benson)

AND

PETER ROBERT BENSON & ORS RESPONDENTS

Cook v Benson

[2003] HCA 36

19 June 2003

M2/2003

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

G T Bigmore QC with M J Galvin for the appellant (instructed by Gadens Lawyers)

M J L Rajanayagam for the first respondent (instructed by IFS Fairley)

M N C Harvey for the second to fourth respondents (instructed by Clayton Utz)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Cook v Benson

Bankruptcy – Avoidance of settlement of property – Roll-over of superannuation entitlements – Superannuation entitlements applied in payment of contributions to other superannuation schemes – Whether settlements of property – Whether trustees were purchasers – Whether trustees purchasers for valuable consideration – Bankruptcy Act 1966 (Cth), s 120(1).

Words and phrases: "purchaser", "valuable consideration", "settlement of property".

Bankruptcy Act 1966 (Cth), ss 120(1), (8).

1. GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ. The question in this appeal is whether s 120 of the Bankruptcy Act 1966 (Cth) ("the Act"), in the form in which it stood at the relevant time (September 1990), operated so as to render void as against the trustee in bankruptcy payments made as contributions to superannuation funds by a person who later became bankrupt.

1. Section 120 of the Act provided:

"120 (1) A settlement of property, whether made before or after the commencement of this Act, not being:

(a) a settlement made before and in consideration of marriage, or made in favour of a purchaser or encumbrancer in good faith and for valuable consideration; or