Condon v Vanessa Two Pty Ltd

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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 20
Date 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,…

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Details
Case
[2018] FCA 947
Decision Date

CaseChat Overview and Summary

The applicant, Condon, applied to the Court under section 121 of the Bankruptcy Act 1966 (Cth) to void transactions involving the respondents, Vanessa Two and Mrs Leahy, against the trustee in bankruptcy. The application sought to recover $201,135.57 and a boat from the respondents, who were alleged to have received unfair preferences from the bankrupt. The respondents argued that the applicant did not meet the requirements under section 121(2) of the Act, as the bankrupt was not insolvent at the time of the transactions.

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

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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