FEDERAL COURT OF AUSTRALIA
Burness, In the matter of Denward Lane Pty Ltd (ACN 065 418 411) (In Liquidation) [2009] FCA 893
PAUL BURNESS (AS LIQUIDATOR OF DENWARD LANE PTY LTD (ACN 065 418 411) (IN LIQUIDATION)) v SUPAPRODUCTS PTY LTD (ACN 057 134 522)
VID 203 of 2008
GORDON J
18 AUGUST 2009
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 203 of 2008
GENERAL DIVISION
IN THE MATTER OF DENWARD LANE PTY LTD (ACN 065 418 411) (IN LIQUIDATION)
BETWEEN: PAUL BURNESS (AS LIQUIDATOR OF DENWARD LANE PTY LTD (ACN 065 418 411) (IN LIQUIDATION))
PlaintiffAND: SUPAPRODUCTS PTY LTD (ACN 057 134 522)
Defendant
JUDGE:
GORDON J
DATE OF ORDER:
18 AUGUST 2009
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Plaintiff is to pay the Defendant’s costs of the application.
3.Liberty to apply within 7 days.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 203 of 2008
GENERAL DIVISION
IN THE MATTER OF DENWARD LANE PTY LTD (ACN 065 418 411) (IN LIQUIDATION)
BETWEEN: PAUL BURNESS (AS LIQUIDATOR OF DENWARD LANE PTY LTD (ACN 065 418 411) (IN LIQUIDATION))
PlaintiffAND: SUPAPRODUCTS PTY LTD (ACN 057 134 522)
Defendant
JUDGE:
GORDON J
DATE:
18 AUGUST 2009
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
Supaproducts Pty Ltd (ACN 057 134 522) (“the Defendant”) manufactures and supplies building hardware by way of sale and hire to builders. Between 1997 and 23 June 2005 (a period of some eight years), the Defendant supplied building hardware to Denward Lane Pty Ltd (ACN 065 418 411) (“Denward Lane”). At all relevant times, Denward Lane had two directors – Mr Stephen Smith and, his father, Mr Keith William Smith.
On 13 July 2005, Denward Lane was wound up and Paul Burness (“the Liquidator”) was appointed liquidator of Denward Lane. The relation back date was 19 April 2005, being the date application was made to wind up Denward Lane. The relation back period commenced on 19 October 2004 (the “Relation Back Period”): s 588FE(2) of the Corporations Act 2001 (Cth) (“the Act”).
The following facts and matters are not in dispute:
1.Denward Lane was insolvent at all times during the Relation Back Period;
2.the dealings between the Defendant and Denward Lane took place under a running account (see Sutherland (as liquidator of Sydney Appliances Pty Ltd (in liq)) v Eurolinx Pty Ltd (2001) 37 ACSR 477 at [142], [148] – [163]; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 286; Airservices Australia v Ferrier (1995) 185 CLR 483 at 492, 502 – 504; Sutherland v Lofthouse (2007) 64 ACSR 655 at [35]);
3.during the Relation Back Period, the peak indebtedness of Denward Lane’s account with the Defendant was $203,128.35;
4.the Defendant received the following payments in reduction of the running account balance…
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- AGLC
- Burness v Supaproducts Pty Ltd [2009] FCA 893
- Case
- [2009] FCA 893
- Decision Date
CaseChat Overview and Summary
The court considered whether the transactions in question were preferences within the meaning of section 588FA(1)(a), and if so, whether they met the additional criteria set out in sections 588FA(1)(b) and (c). Supaproducts argued that the transactions did not constitute preferences as they were ordinary course of business transactions. The court found that the payments made by Denward Lane to Supaproducts were indeed in the ordinary course of business, given the longstanding relationship and the practice in the industry of delayed payments. The court further held that the payments did not result in Supaproducts receiving more than it would have in a winding up, as the post-dated cheques were eventually honoured and there was no significant delay beyond industry norms. Consequently, the court dismissed Burness's application, finding that the transactions did not constitute voidable preferences.
In summary, the court ruled against the plaintiff's claim, determining that the transactions between Denward Lane and Supaproducts did not meet the statutory criteria for voidable preferences. The plaintiff was ordered to pay the defendant's costs of the application. Supaproducts was granted liberty to apply within seven days if there were any further issues to be addressed.
Orders
Orders of the court
1. The application is dismissed.
2. The Plaintiff is to pay the Defendant’s costs of the application.
3. Liberty to apply within 7 days.
Note:
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: GORDON J
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