Re Drysdale, Ronald Douglas; Ex Parte Clout, David Lewis the Trustee of the Estates of Ronald Douglas Drysdale and Diane Lynette Drysdale

[1997] FCA 1188

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 7515  of   1997

RE:

RONALD DOUGLAS DRYSDALE AND DIANE LYNETTE DRYSDALE
BANKRUPTS

EX PARTE:

DAVID LEWIS CLOUT THE TRUSTEE OF THE ESTATES OF RONALD DOUGLAS DRYSDALE AND DIANE LYNETTE DRYSDALE
APPLICANT

AND

MULFORD PLASTICS PTY LTD
RESPONDENT

JUDGE:

COOPER J

DATE OF ORDER:

3 OCTOBER 1997

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1. Mulford Plastics Pty Ltd pay to David Lewis Clout as trustee of the estates of Ronald Douglas Drysdale and Diane Lynette Drysdale the sum of $5,500;

2. The respondent Mulford Plastics Pty Ltd pay the trustee’s costs of and incidental to this application, fixed at $3,500.

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	QG 7515 of 1997

RE:

RONALD DOUGLAS DRYSDALE AND DIANE LYNETTE DRYSDALE
BANKRUPTS

EX PARTE:

DAVID LEWIS CLOUT THE TRUSTEE OF THE ESTATES OF RONALD DOUGLAS DRYSDALE AND DIANE LYNETTE DRYSDALE
APPLICANT

AND

MULFORD PLASTICS PTY LTD
RESPONDENT

JUDGE:	COOPER J
DATE:	3 OCTOBER 1997
PLACE:	BRISBANE

REASONS FOR JUDGMENT

This is an application by the Trustee of the bankrupt estates of Ronald Douglas Drysdale and Diane Lynette Drysdale.  The bankrupt estate was sequestrated by the acceptance of a debtor’s petition on 15 March 1995. 

By cheque dated 17 October 1994, a copy of which is exhibited to an affidavit of Mr Clout sworn 2 September 1997, the bankrupts paid the sum of $5,500 to Mulford Plastics Pty Ltd, which sum was used to discharge outstanding debt.  As appears from the material, the payment was appropriated by the creditor to the oldest of outstanding debts then owed, leaving outstanding a sum slightly in excess of $2,000, which remained unpaid at the date of bankruptcy of the debtors.

At the time of making the payment, I am satisfied on the material that the bankrupts had other creditors, and that the effect of paying Mulford Plastics Pty Ltd was to grant to that creditor a preference or advancement over other creditors of the debtors existing at that time. I am satisfied that the payment was made during the relation back period of six months, and that the payment is void as against the trustee by virtue of the operation of s 122 of the Bankruptcy Act 1966 (Cth) (“the Act”). I am further satisfied that the application and supporting material was served upon the respondent, and that the respondent was aware of the hearing date today. The respondent did not appear when called, therefore no question arises as to the operation of s 122(2) of the Act.

I am satisfied that the applicant is entitled to the relief sought. 

THE COURT DECLARES that the payment of the sum of $5,500 by cheque dated 17 October 1994 to Mulford Plastics Pty Ltd was a preference payment within the meaning of s 122 of the Bankruptcy Act 1966 (Cth).

I have been asked to fix the costs in relation to this matter in the sum of $3,500.  On the basis of counsel appearing once before the Registrar, and before me today, instructed on both occasions via a clerk of his instructing solicitors, and having regard to the length of the material prepared, including the costs of having the material served in New South Wales where the respondent carries on business, my rough calculations as to a reasonable cost comes to approximately that sum.

THE COURT ORDERS THAT :-

1. Mulford Plastics Pty Ltd pay to David Lewis Clout as trustee of the estates of Ronald Douglas Drysdale and Diane Lynette Drysdale the sum of $5,500;

2. The respondent Mulford Plastics Pty Ltd pay the trustee’s costs of and incidental to this application, fixed at $3,500.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper

Associate:  Dated:            3 October 1997

Counsel for the Applicant: Solicitors for the Applicant:	K J McGhee Toogoods
Date of Hearing:	3 October 1997
Date of Judgment:	3 October 1997