Tamaya Resources Ltd v Claymore Capital Pty Ltd

The plaintiffs, Tamaya Resources Ltd and its liquidators, have brought an application against Claymore Capital Pty Ltd for the recovery of four payments made by Tamaya in the six months leading up to its administration on 27 October 2008. The plaintiffs claim that these payments are voidable transactions under ss 588FA and 588FC of the Corporations Act 2001 (Cth), as they were unfair preferences and insolvent transactions. Specifically, the plaintiffs seek an order under s 588FF(1)(a) for Claymore to repay an aggregate amount of $472,647.23 to Tamaya. The defendants, Claymore, contest the claims and argue that they are not liable to repay the amounts in question.

The primary legal issues in this case concern the interpretation and application of ss 588FA and 588FC of the Corporations Act 2001 (Cth), which relate to unfair preferences and insolvent transactions. The court must determine whether the payments made by Tamaya to Claymore were indeed unfair preferences and insolvent transactions, and if so, whether Claymore can rely on the good faith defence under s 588FG(2) of the Corporations Act 2001 (Cth). Additionally, the court must consider the meaning of "suspicion" as it pertains to the good faith defence and whether the payments constituted an upfront fee, which might impact their characterization as unfair preferences.

The court examined the nature of the payments and the relationship between Tamaya and Claymore. It noted that genuine upfront fees, which encourage commercial dealings with an insolvent company, are generally not impugned as unfair preferences. The court concluded that the upfront fee in question did not constitute an unfair preference because it was not made in relation to a pre-existing debt. The court also held that Claymore was not a creditor of Tamaya in relation to the upfront fee at the time it entered into the New Mandate with Tamaya, a requirement under s 588FG(1) of the Corporations Act 2001 (Cth). Consequently, the court rejected the plaintiffs' contentions that the payments constituted unfair preferences and insolvent transactions.

The court ordered that Claymore repay the third payment to Tamaya, which was made in relation to an existing debt. The court noted that the plaintiffs' application was otherwise dismissed. The court will hear the parties on the issue of costs, the time from which interest should be calculated, and the form of the orders.