Wily v Bartercard [2000] NSWSC 372

Reported Decision : (2000) 34 ACSR 186 (2000) 18 ACLC 448

New South Wales Supreme Court

CITATION : Wily v Bartercard [2000] NSWSC 372 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3093/98 HEARING DATE(S) : 2 May 2000 JUDGMENT DATE : 9 May 2000

Andew Wily (P1) PARTIES : Business Barter Exchange (Australia) Pty Limited (In Liquidation) (P2) Bartercard Limited (D) JUDGMENT OF : Austin J

COUNSEL : P Braham (P) M Jarrett (D) SOLICITORS : The Argyle Partnership (P) Deirdre Kirke Payne (D) CATCHWORDS : CORPORATIONS - winding up - voidable transaction - unfair preference - meaning of 'transaction' - whether creditor who terminates license agreement receives benefit LEGISLATION CITED : Corporations Law ss 9, 588FA, 588FC, 588FE, 588FF Commissioner of Taxation v Murry (1998) 72 ALJR 1065 CASES CITED : Re Emanuel (No 14) Pty Ltd (in liq) (1997) 24 ACSR 292 Yeomans v Lease Industrial Finance Ltd (1987) 5 ACLC 103 DECISION : Declaration and orders as sought by plaintiffs

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

AUSTIN J

TUESDAY 9 MAY 2000

3093/98 . ANDREW WILY & ANOR V BARTERCARD LTD

JUDGMENT

1 HIS HONOUR: The first plaintiff is the liquidator of the second plaintiff ('BBX'), having been appointed by an order of this Court made on 17 December 1996. By a statement of claim filed on 10 July 1998, the plaintiffs seek a declaration that the set-off by the defendant of its liability to BBX, against amounts owing by BBX to the defendant, is a voidable transaction pursuant to s 588 FE of the Corporations Law. They seek orders pursuant to s 588 FF of the Corporations Law, including an order that the defendant pay to the plaintiffs an amount representing the value of the goodwill of BBX's business as at 28 August 1996, together with interest.