Radio Corporation Pty Ltd v Bear [1961] HCA 26

High Court of Australia Dixon C.J. McTiernan and Fullagar JJ. Radio Corporation Pty Ltd v Bear [1961] HCA 26

ORDER Appeal allowed. Costs of appellant to be paid out of assets of bankrupt estate subject to any prior charges: costs of respondent trustees of the bankrupt estate as between solicitor and client to be paid or retained out of the said assets. Set aside so much of the order of the Federal Court of Bankruptcy as declares that £2,514 8s. 6d. was paid by the bankrupt to the now appellant company between 30th November 1956 and 18th April 1957 and that such moneys were the property of the now respondent trustees of the bankrupt estate and as orders that the now appellant company do pay to the now respondent trustees of the bankrupt estate the two respective sums of £1,282 16s. 0d. and £2,514 8s. 6d. and as deals with costs. In lieu thereof declare that inasmuch as the property the subject of the preference referred to in the preceding part of the order of the Federal Court of Bankruptcy was not in fact taken out of the hands of the bankrupt and handed over to the appellant company or otherwise put in its beneficial possession and enjoyment or otherwise excluded from the business operations of the bankrupt the appellant company is not liable under s. 95 of the Bankruptcy Act 1924-1955 to pay the sum of £1,282 16s. 0d. to the respondent trustees of the bankrupt estate. Order that inasmuch as the date of the commencement of the bankruptcy by virtue of s. 90 of the said Act is 30th November 1956 unless the parties otherwise agree there be an inquiry as to the dealings with the property of the bankrupt including receipt of moneys belonging to him which were had by the appellant company on and after 30th November 1956 resulting in a liability to repay to the respondent trustees of the bankrupt estate any and what sums of money. Let such account be taken as may be found necessary. Let the result of such account be certified to the Federal Court of Bankruptcy. Remit the cause to the Court for further consideration and to make such order upon motion consistently with this order as may appear just, including an order as to the costs of the motion and of proceedings under this order and upon further consideration. Liberty to the parties to apply to the Federal Court of Bankruptcy.