Clout (Trustee) v Anscor Pty Ltd

Case [2003] FCA 326


FEDERAL COURT OF AUSTRALIA

Clout (Trustee) v Anscor Pty Ltd [2003] FCA 326

BANKRUPTCY - payment of moneys by person later becoming bankrupt to third party void as against trustee in bankruptcy - tracing remedies available to trustee in respect of moneys received by third party from person later becoming bankrupt and paid over to other parties to enable them to acquire interests in their own properties - whether tracing remedies are available in respect of moneys paid into a mixed fund

TRUSTS - despite execution of trust deed, no trust ever constituted where evidence shows that person controlling the activities including those taken to establish a trust, that person’s adviser as settlor and the putative trustee had no intention that there was to be a trust for the benefit of others but that the trust fund was to be a repository of moneys to be disbursed by the trustee as and when the controlling person directed

Bankruptcy Act 1966 (Cth) ss 116 and 120

Barton v Official Receiver (1984) 4 FCR 380
Chan v Zacharia (1984) 154 CLR 178
Cohen v Cohen (1929) 42 CLR 91
Associated Alloys case (2000) 202 CLR 588; [2000] HCA 25
Air Canada v M & L Travel Ltd (1993) 108 DLR (4th) 592
Stephens Travel Service International Pty Ltd (Receivers and Managers Appointed) v QANTAS Airways Ltd (1988) 13 NSWLR 331
Daly v Sydney Stock Exchange Limited (1986) 160 CLR 371
Re Hodby (Fisher J, Federal Court of Australia, 16 April 1987, unreported)
Re Goode; Ex parte Mount (1974) 4 ALR 579
Brady v Stapleton (1952) 88 CLR 322
Windsor Mortgage Nominees Pty Ltd (as trustee) v Cardwell [1979] ACLC 32,195
Australian Securities Commission v Melbourne Asset Management Nominees Pty Ltd(Receiver and Manager Appointed) (1994) 49 FCR 334
Victorian Producer’s Co-Operative Co Ltd v Kenneth [1999] FCA 1488
Sutherland v Brien (1999) NSWSC 155
Official Trustee in Bankruptcy v Alvaro (1996) 66 FCR 372
Richard Walter Pty Ltd v Commissioner of Taxation (1996) 67 FCR 243
Manzi v Smith (1975) 132 CLR 671
Agip (Africa) Ltd v Jackson [1990] 1 Ch 265 at 290 and, on appeal, [1991] Ch at 566 - 567
Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449
Baker v Official Trustee (Full Court of the Federal Court, 3 August 1995, unreported)

Jacobs, Law of Trust in Australia, 6th ed, at par 214

DAVID LEWIS CLOUT (AS TRUSTEE IN BANKRUPTCY OF THE ESTATE OF GEOFFREY  ROBERT DEXTER) v ANSCOR PTY LTD, MACKAY & ALLEN PTY LTD, HINATORIE PTY LTD (PROVISIONAL LIQUIDATOR APPOINTED), THE FUND ADMINISTRATORS PTY LTD, REINSAG NOMINEES PTY LTD, SPECTRUM FUND ADMINISTRATION PTY LTD, AUSTRALIAN SECURED MORTGAGES PTY LTD, PROJECT FINANCE (QLD) PTY LTD, ANNE SHIRLEY CORBETT, CROFTBY DOWNS PTY LTD, THORNVILLE PTY LTD IN ITS OWN CAPACITY AND IN ITS CAPACITY AS TRUSTEE OF THE ANSCOR EXECUTIVE INCENTIVE TRUST AND THE THORNVILLE EXECUTIVE INCENTIVE TRUST, ANSCOR INVESTMENTS PTY LTD AND PACIFIC INTERNATIONAL ASSET MANAGEMENT LIMITED

QG 7308 OF 1998

DRUMMOND…

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Clout (Trustee) v Anscor Pty Ltd [2003] FCA 326
Case
[2003] FCA 326
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Drummond J delivered a decision in Clout (Trustee) v Anscor Pty Ltd, a case concerning the recovery of property by a trustee in bankruptcy under s 120 of the Bankruptcy Act 1966 (Cth). The applicant, Clout, as the trustee in bankruptcy of Geoffrey Robert Dexter, sought to recover commission moneys paid by Dexter to Anscor Pty Ltd and trace those funds into properties held by various respondents. The court considered whether the commission payments were undervalued transactions void against the trustee, and if tracing remedies were available for the transferred funds. Drummond J held that the commission payments were indeed undervalued transactions and that the trustee could trace the funds into properties held by certain respondents. The court granted various declarations and orders, including voiding certain securities and charging properties to secure payment of the trustee's claims. The decision provides guidance on the application of s 120 of the Bankruptcy Act and the principles of tracing in the context of bankruptcy proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DRUMMOND J

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Ratio Decidendi

Legal Principle Established

Established by: DRUMMOND J

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