NSW Caselaw
Reported Decision : 6 DCLR (NSW) 82
New South Wales District Court
CITATION: Modern Master Pty Ltd (In Liq) v Canon Australia Pty Ltd [2007] NSWDC 245
HEARING DATE(S): 2 November 2007
JUDGMENT DATE: 28 November 2007
JURISDICTION: Civil
JUDGMENT OF: Hungerford ADCJ
DECISION: (1) Defendant directed to pay to Modern Master Pty Limited (Receivers and Managers Appointed) (In Liquidation) ACN 106 230 700 the sum of $93,182.57 plus interest of $18,079.97, a total of $111,262.54; (2) Defendant to pay the plaintiff's costs of the proceedings
CATCHWORDS: CORPORATIONS - Payments by company for products and services supplied - Whether payments constituted voidable transactions to support recovery from the unsecured creditor by the company's liquidator under s 588FF(1)(a) of the Corporations Act 2001 (Cth) - Insolvent company - Transactions an unfair preference - Whether transactions an integral part of a continuing business relationship as a "running account" to constitute a defence to recovery under s 588FA(3) of the Corporations Act - "Good faith" defence to recovery under s 588FG(2) of the Corporations Act - Subjective and objective tests for suspicion of insolvency of company at time transactions made - Neither defence made out - Order made for recovery of payments
Corporations Act 2001 (Cth), ss 436A(1), 439C(c), 475(1), 588E(1), 588FA(1) and (3), 588FC, 588FE(1) and (2), 588FF(1)(a), 588FG(2), 1337E(1) and Div 2 of Pt 5.7B LEGISLATION CITED: Civil Procedure Act 2005 (NSW), s 100(1) Uniform Civil Procedure Rules 2005 (NSW), Sch 5
Airservices Australia v Ferrier & Anor (1996) 185 CLR 483 Downey v Aira Pty Ltd (1996) 15 ACLC 1068 Ermayne; Sims v Tech Holdings Pty Ltd (1998) 30 ACSR 330 Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 CASES CITED: Rees v Bank of New South Wales (1964) 111 CLR 210 Sims v Celcast Pty Ltd (1998) 71 SASR 142 Smith v Deputy Commissioner of Taxation (1997) 23 ACSR 611 Sutherland v Liquor Administration Board (1997) 15 ACLC 875 Sydney Appliances Pty Ltd (In Liq) v Eurolinx Pty Ltd [2001] NSWSC 230
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