Re Starkey, G.L. v Ex parte Douglas, A.D

Re: ALEXANDER DAVID DOUGLAS
Ex parte: GRAHAM LINDSAY STARKEY
No. QLD X28 of 1987
Bankruptcy - Stamp Duties - Contract - Bills of Sale

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND
Pincus J.

CATCHWORDS

Bankruptcy - application to set aside security - whether Queensland Bill of Sale effective from execution, from stamping, or from registration - whether bill of sale a "settlement" - going behind stated consideration.

Stamp Duties - bill of sale - stamped after execution - whether effective before stamping.

Contract - consideration - uncertain agreement to give security - later made precise - whether security given for good consideration.

Bills of Sale - Queensland - registered late - effectiveness as to period before registration.

Bankruptcy Act 1966, ss.120, 122

Bills of Sale and Other Instruments Act 1955-1981 (Q.), s.7

Stamp Act 1894-1985 (Q.), s.4A

HEARING

BRISBANE

#DATE 20:7:1987

Counsel for the Applicant: Mr A.J.H. Morris

Solicitors for the Applicant: Messrs Cooper Grace and Ward

Counsel for the Respondent: Mr P. Applegarth

Solicitors for the Respondent: Messrs Marrinan & Associates

ORDER

The application made by the trustee be dismissed;

The trustee pay the respondents' costs of and incidental to the application, to be taxed.

Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

JUDGE1

This is an application by a trustee of a deed of assignment under Part X of the Bankruptcy Act for a declaration that a certain bill of sale be declared void. The application is made under s.120, and alternatively under s.122, of the Bankruptcy Act and is opposed. The points involved, as will appear, are essentially technical ones.

1. In outline, the facts are that about August 1986, the assignor borrowed money from a bank on the security of a guarantee given by his parents, the respondents. He executed a bill of sale in their favour to cover his contingent liability to them, but it was not dated or registered until December 1986, about which time he was showing distinct signs of being in financial trouble. The deed of assignment was executed on 6 March 1987, pursuant to a resolution at a meeting of creditors passed on that day.

2. In more detail, the evidence and my findings are as follows; I proceed, at this stage, on the assumption that evidence contradicting the date shown on the bill of sale is admissible. In July 1986, the assignor approached the National Australia Bank for a loan and they agreed to make one if his parents would guarantee it. The amount of the loan was to be $40,000 and it was to be expended in buying machinery, a saw.

3. The assignor's account of this transaction is slightly different from that of his father. The assignor says his parents initially declined to guarantee the bank loan but subsequently agreed on condition that he gave them a bill of sale over the saw which was being purchased. He says, "The…