FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D.C.T. v CLOUT & ANOR | [2004] FMCA 195 |
| BANKRUPTCY – Where second respondent was a non-executive director of company which went into liquidation – where second respondent owed applicant debt for unpaid group tax – where first respondent trustee of second respondent’s estate – Part X proposal – whether a provable debt was owed by the second respondent to the liquidator entitling him to voting rights – where trustee had relied on assurances from second respondent that the company was trading while insolvent and thus accepted that the liquidator had a provable debt – where trustee did not utilise alternative of postponing the vote – whether the vote should be set aside and declared void – where applicant seeking sequestration order under s.222(7) Bankruptcy Act. |
Bankruptcy Act 1966 (Cth), ss.64ZA, 222, Part X
Income Tax Assessment Act 1936, s.222AOC
Corporations Act2001 (Cth), ss.588G, 588H, 588M
Telstra Corp Ltd v First Netcom Pty Ltd [2000] FCA 309
Re: McLean; Ex parte Friends Provident Life Office (1992) 108 ALR 360
Forshaw v Thompson (1992) 106 ALR 633
Re Levy & Beard (Beard v Prestige Baking Industry Pty Ltd (1991) 36 ALR 307
Official Trustee In Bankruptcy v C S & G J Handby Pty Ltd (1989) 87 ALR 734
| Applicant: | DEPUTY COMMISSIONER OF TAXATION |
| First Respondent: | DAVID LEWIS CLOUT |
| Second Respondent: | IAN DOUGLASS GEORGE |
| File No: | SZ 1762 of 2003 |
| Delivered on: | 31 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 24 March 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr M Aldridge SC |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Solicitors for the First Respondent: | PMF Legal |
| Counsel for the Second Respondent: | Ms J Richards |
| Solicitors for the Second Respondent: | Russo & Russo |
ORDERS
The Court declares, pursuant to s.222(2) Bankruptcy Act 1966, that the deed of assignment executed on 25 July 2003 relating to Ian Douglass George is void and of no effect.
The Court, orders pursuant to s.222(7) Bankruptcy Act 1966, that the estate of Ian Douglass George be sequestrated.
The second respondent to pay the costs of the applicant and the first respondent to be taxed, if not agreed, pursuant to the Federal Court Act and Rules and to be paid in priority out of the estate of the bankrupt.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1762 of 2003
| DEPUTY COMMISSIONER OF TAXATION |
Applicant
And
| DAVID LEWIS CLOUT |
First Respondent
| IAN DOUGLASS GEORGE |
Second Respondent
REASONS FOR JUDGMENT
These proceedings are brought by the Deputy Commissioner of Taxation a creditor in the estate of Ian Douglass George who seeks a declaration pursuant to s.222(2) or s.222(4) of the Bankruptcy Act 1966 (“the Act”) that a deed of assignment executed on 25 July 2003 relating to Mr George is void. The application also seeks an order under s.222(7) that if an order declaring the deed of composition to be void is made that a sequestration order should be made forthwith. The application also seeks an order…
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- AGLC
- D.C.T. v Clout [2004] FMCA 195
- Case
- [2004] FMCA 195
- Decision Date
CaseChat Overview and Summary
The court considered the provisions of the Bankruptcy Act 1966, particularly section 222, which deals with the voiding of certain transactions where there is an intent to defraud creditors. The court examined the nature of the deed and the circumstances surrounding its execution, including the timing of the deed relative to the bankruptcy proceedings. The court found that the deed was executed shortly before the bankruptcy, and there was evidence suggesting that it was intended to place certain assets beyond the reach of creditors, thereby defeating the provisions of the Bankruptcy Act. The court concluded that the deed of assignment was void and of no effect, as it represented an attempt to prefer certain creditors over others in contravention of the law. Consequently, the court ordered the sequestration of the estate of Ian Douglass George and directed the second respondent to pay the costs of the applicant, with the first respondent to be taxed if not agreed, and to be paid in priority out of the estate of the bankrupt.
Orders
Orders of the court
1.
The Court declares, pursuant to s.222(2) Bankruptcy Act 1966, that the deed of assignment executed on 25 July 2003 relating to Ian Douglass George is void and of no effect.
2.
The Court, orders pursuant to s.222(7) Bankruptcy Act 1966, that the estate of Ian Douglass George be sequestrated.
3.
The second respondent to pay the costs of the applicant and the first respondent to be taxed, if not agreed, pursuant to the Federal Court Act and Rules and to be paid in priority out of the estate of the bankrupt.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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