All Type Timber Pty Ltd v BGC Fibre Cement [2007] NSWDC 90

New South Wales District Court

CITATION: All Type Timber Pty Ltd v BGC Fibre Cement [2007] NSWDC 90

HEARING DATE(S): 13, 14 and 15 February 2007

JUDGMENT DATE: 28 March 2007

JURISDICTION: Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ at 1

DECISION: Judgment for the Defendant

CATCHWORDS: CORPORATIONS ACT - Insolvent corporation - Action by liquidator for recovery of alleged preferences - Continuing business relationship between corporation and defendant - Peak indebtedness on the running account - Defence as to no reasonable grounds for suspicion of insolvency: subjective and objective tests satisfied

LEGISLATION CITED: Corporations Act 2001: ss 588E, 588FC, 588FA, and 588FG(2)(b)

Airservices Australia v Ferrier (1996) 185 CLR 483 at 503 CASES CITED: Dean-Willcocks v Commissioner of Taxation [2004] NSWSC 1058 at [30] Sutherland v Eurolinx Pty Ltd [2001] NSWSC 230 at [43], [140] and [148] Whitton v Konemann Australia Pty Ltd [2002] NSWSC 1137 at [59]

All Type Timber Pty Ltd (In Liquidation) (First Plaintiff) PARTIES: Adrian Duncan (Second Plaintiff) BGC (Australia) Pty Limited trading as BGC Fibre Cement (Defendant)

FILE NUMBER(S): 615/05

COUNSEL: Mr C Locke for the Plaintiffs Mr J Johnson for the Defendant

SOLICITORS: Smith Partners - Sydney (Plaintiffs) Hotchkin Hanly - Perth (Defendant)

JUDGMENT Introduction 1. All Type Timber Pty Limited was placed under administration on 22 March 2002 ("the relation-back day"). Subsequently, it was placed into a creditors voluntary winding-up and Mr Duncan (the second plaintiff) became the liquidator.