FEDERAL COURT OF AUSTRALIA
Condon v Vanessa Two Pty Ltd [2018] FCA 947
File number(s): NSD 144 of 2017 Judge(s): FARRELL J Date of judgment: 21 June 2018 Catchwords: BANKRUPTCY – application under s 121 of the Bankruptcy Act 1966 (Cth) to void transactions against trustee in bankruptcy – whether the bankrupt was insolvent, or about to become insolvent, at the time of the transactions for the purposes of s 121(2) of the Bankruptcy Act – when is a debt due and payable – application granted Legislation: Bankruptcy Act 1966 (Cth) s 121 Cases cited: Maxsted v Chicago Boot Co Pty Ltd [2011] SASC 27
Prentice v Cummins (No 5) [2002] FCA 1503; 124 FCR 67
Whitton v Regis Towers Real Estate Pty Ltd [2007] FCAFC 125; 161 FCR 20Date of hearing: 19 June 2017 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 45 Counsel for the Applicant: Mr D C Eardley Solicitor for the Applicant: Hammond Nguyen Turnbull Counsel for the Respondents: Mr D P O’Connor Solicitor for the Respondents: Collins & Thompson ORDERS
NSD 144 of 2017 BETWEEN: SCHON CONDON, AS TRUSTEE OF THE BANKRUPT ESTATE OF STEPHEN BARRY CHARLES GRIBBLE
Applicant
AND: VANESSA TWO PTY LTD AS TRUSTEE FOR THE GRIBBLE FAMILY TRUST
First Respondent
VANESSA GRIBBLE
Second Respondent
ROBYN LEAHY
Third Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
21 JUNE 2018
THE COURT DECLARES THAT:
1.Pursuant to s 121(1) of the Bankruptcy Act 1966 (Cth), the following transactions are void against the applicant:
(a)The transfer of a Southwind boat with registration ADM950N from Stephen Barry Charles Gribble (Mr Gribble) to the third respondent (Mrs Leahy) in June 2011; and
(b)The transfer of $201,135.57 (being the amount of a cheque representing Mr Gribble’s inheritance from his late mother’s estate) to a bank account operated by the first respondent (Vanessa Two) on or about 12 March 2013.
THE COURT ORDERS THAT:
1.Vanessa Two must pay $201,135.57 to the applicant within a period to be determined by the Court in accordance with these orders.
2.Mrs Leahy must deliver the boat up to the applicant at a time and place and in a manner to be determined by the Court in accordance with these orders.
3.The respondents must pay the applicant’s costs as agreed or assessed, unless the parties elect to adopt a lump sum procedure in accordance with these orders.
4.The parties are to confer on the following issues:
(a)The period within which Vanessa Two must make the payment referred to in Order 1;
(b)The time, place and manner by which the boat must be delivered up to the applicant; and
(c)Whether it is appropriate that Order 3 be quantified as a lump sum order.
5.The parties must, by 3 pm on 29 June 2018 provide to Farrell J’s chambers:
(a)Subject to paragraph (b), draft orders to which the parties consent in relation to the matters specified in Order 4,…
Keep reading for free
Create a free CaseChat account to read Condon v Vanessa Two Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2018] FCA 947
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the bankrupt was insolvent or about to become insolvent at the time of the transactions. The court also needed to establish when the debt was due and payable. The court found that the bankrupt was not insolvent at the time of the transaction, but was about to become insolvent. The court held that the debt was due and payable at the time of the transaction. As a result, the court granted the application and ordered the respondents to pay the amount and deliver the boat to the applicant.
The court granted the application and ordered Vanessa Two to pay the applicant $201,135.57 within a period to be determined by the Court in accordance with the orders. Mrs Leahy was also ordered to deliver the boat up to the applicant at a time and place to be determined by the Court. The respondents were ordered to pay the applicant’s costs as agreed or assessed, unless the parties elect to adopt a lump sum procedure in accordance with the orders. The parties were required to confer on the issues of the period within which Vanessa Two must make the payment, the time, place and manner by which the boat must be delivered up to the applicant, and whether it is appropriate that Order 3 be quantified as a lump sum order. The parties were also required to provide draft orders to the Court’s chambers by 3 pm on 29 June 2018.
Orders
Orders of the court
1. Vanessa Two must pay $201,135.57 to the applicant within a period to be determined by the Court in accordance with these orders.
2. Mrs Leahy must deliver the boat up to the applicant at a time and place and in a manner to be determined by the Court in accordance with these orders.
3. The respondents must pay the applicant’s costs as agreed or assessed, unless the parties elect to adopt a lump sum procedure in accordance with these orders.
4. The parties are to confer on the following issues:
(a) The period within which Vanessa Two must make the payment referred to in Order 1;
(b) The time, place and manner by which the boat must be delivered up to the applicant; and
(c) Whether it is appropriate that Order 3 be quantified as a lump sum order.
5. The parties must, by 3 pm on 29 June 2018 provide to Farrell J’s chambers:
(a) Subject to paragraph (b), draft orders to which the parties consent in relation to the matters specified in Order 4, including any ancillary orders necessary to give effect to those orders. If the parties agree that a lump sum costs order is appropriate, they should provide a timeframe for the provision of a Costs Summary and Costs Response and brief submissions as envisaged by the Court’s Costs Practice Note (GPN-Costs).
(b) If the parties do not agree on the form of the draft orders, they must each provide draft orders for which they contend.
6. Liberty be granted to the parties to seek such ancillary or other orders as may be required to give effect to the foregoing orders.
7. Without limiting Order 6, if Vanessa Two does not comply with Order 1 within the timeframe ordered by the Court, the applicant has liberty to apply to the Court for the appointment of a person or persons who consent to such appointment as a receiver or other external administrator for the purpose of giving effect to Order 1.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.