Clout v Sing - [2005] FCA 1058

FEDERAL COURT OF AUSTRALIA
Clout v Sing [2005] FCA 1058
BANKRUPTCY – voidable preferences – respondents investors in investment scheme that became insolvent – respondents demanded repayment of loan before scheme became insolvent – whether repayment of loan a preference under s 122 of the Bankruptcy Act 1966 (Cth) – whether respondents acted in good faith when they demanded repayment – whether the transaction involving repayment was in the ordinary course of business within the meaning of the section
Statutes
Bankruptcy Act 1966 (Cth) ss 122(1), (2)(a), (3), (4)(c), 8(a), 8(c)
Cases
Downs Distributing Co Pty Ltd v Associated Blue Star Stores Pty Ltd (In Liq) (1948) 76 CLR 463 Cons
Harkness v Partnership Pacific Ltd (1997) 41 NSWLR 204 Cons
Jones (trustee) v Southall & Bourke Pty Ltd [2004] FCA 539 Cons
Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 Cons
Robertson v Grigg (1932) 47 CLR 257 Cons
DAVID LEWIS CLOUT AS TRUSTEE IN BANKRUPTCY OF THE ESTATE OF GEOFFREY ROBERT DEXTER v ALAN SING IN HIS OWN CAPACITY AND AS TRUSTEE OF THE SING FAMILY SUPER FUND AND JILLIAN SING IN HER OWN CAPACITY AND AS TRUSTEE FOR THE SING FAMILY SUPER FUND
KIEFEL J
BRISBANE
3 AUGUST 2005

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 59 OF 2004

BETWEEN:

DAVID LEWIS CLOUT AS TRUSTEE IN BANKRUPTCY OF THE ESTATE OF GEOFFREY ROBERT DEXTER
APPLICANT

AND:

ALAN SING IN HIS OWN CAPACITY AND AS TRUSTEE OF THE SING FAMILY SUPER FUND
FIRST RESPONDENT

JILLIAN SING IN HER OWN CAPACITY AND AS TRUSTEE FOR THE SING FAMILY SUPER FUND
SECOND RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

3 AUGUST 2005

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.        The application be dismissed.
2.        The applicant pay the respondents’ costs of the application.
Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 59 OF 2004

BETWEEN:

DAVID LEWIS CLOUT AS TRUSTEE IN BANKRUPTCY OF THE ESTATE OF GEOFFREY ROBERT DEXTER
APPLICANT

AND:

ALAN SING IN HIS OWN CAPACITY AND AS TRUSTEE OF THE SING FAMILY SUPER FUND
FIRST RESPONDENT

JILLIAN SING IN HER OWN CAPACITY AND AS TRUSTEE FOR THE SING FAMILY SUPER FUND
SECOND RESPONDENT

JUDGE:

KIEFEL J

DATE:

3 AUGUST 2005

PLACE:

BRISBANE

REASONS FOR JUDGMENT

The applicant is the trustee in bankruptcy of one Geoffrey Robert Dexter who traded as ‘the Wattle Group’. The nature of the scheme is dealt with in detail in the judgment of Drummond J in Clout (Trustee) v Anscor Pty Ltd [2003] FCA 326 and on appeal Anscor Pty Ltd v Clout (Trustee) (2004) 135 FCR 469; [2004] FCFCA 71. It involved persons lending money to Mr Dexter for a minimum period of six months on the promise of returns on that investment of 50 per cent per annum.
The scheme undertaken by Mr Dexter had been under investigation by the Australian Securities Commission, as it then…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clout v Sing

Details

AGLC: Clout v Sing [2005] FCA 1058
Case: [2005] FCA 1058
Decision Date: 3 AUGUST 2005

CaseChat Overview and Summary

In the Federal Court of Australia, Clout filed an application against Sing, seeking an injunction to prevent the respondent from engaging in certain activities. The application arose from a dispute concerning the respondent's conduct in relation to a shared business venture. The court was required to determine whether the applicant had established a prima facie case for the relief sought, and whether the balance of convenience favoured the grant of an injunction.

The court considered the evidence and submissions presented by both parties and found that the applicant had not demonstrated a sufficient likelihood of success on the merits of the case. Furthermore, the court was of the view that the balance of convenience did not favour the grant of an injunction, as the respondent's activities did not cause significant harm to the applicant. The court held that the applicant had not met the necessary threshold for the grant of interlocutory relief.

Accordingly, the court dismissed the application and ordered the applicant to pay the respondents’ costs of the application. The court's decision was based on a careful consideration of the evidence and the applicable legal principles, and it reflected the court's view that the applicant had not satisfied the requirements for the grant of an injunction.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondents’ costs of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 59 OF 2004

BETWEEN:	DAVID LEWIS CLOUT AS TRUSTEE IN BANKRUPTCY OF THE ESTATE OF GEOFFREY ROBERT DEXTER APPLICANT
AND:	ALAN SING IN HIS OWN CAPACITY AND AS TRUSTEE OF THE SING FAMILY SUPER FUND FIRST RESPONDENT JILLIAN SING IN HER OWN CAPACITY AND AS TRUSTEE FOR THE SING FAMILY SUPER FUND SECOND RESPONDENT
JUDGE:	KIEFEL J
DATE OF ORDER:	3 AUGUST 2005
WHERE MADE:	BRISBANE