Worrall v KERR-JONES - [2002] FMCA 21

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WORRALL v KERR-JONES

[2002] FMCA 21

BANKRUPTCY – alleged preference under s.122 – payment to spouse under Court order – whether payment had the effect of giving the creditor a preference – was the spouse a creditor under the order – was the debtor insolvent – was there a transfer of property – held payment from fund not otherwise available to creditors not a preference.

RAMSAY v NATIONAL AUSTRALIA BANK (1988) 6 ACLC 625
BURNS v STAPLETON (1959) 102 CLR 97
NA KRATZMAN PTY LTD v TUCKER (1968) 42 ALJR 164
OFFICIAL TRUSTEE IN BANKRUPTCY v TREVOR NEWTON SMALL SUPERANNUATION FUND PTY LTD (2001) FCA 1267
SHEAHAN v CARRIER AIR CONDITIONING PTY LTD OF CAMPBELL (1997) 189 CLR 407
RE: PEARSON; Ex parte WANSLEY v PEARSON (1993) 46 FCR 55
IN THE MARRIAGE OF DEIN (1989) FLC 92-014
HABIB v HABIB (1988) FLC 91-931

RE: SABRI ex parte BRIEN (1997) FLC 92-732

Applicant:

IVOR WORRELL as trustee of the bankrupt estate of JOHN ANTHONY JONES

Respondent:

ALISON ROBIN KERR-JONES

File No:

BZ 7 of 2001

Delivered on:

18 February 2002

Delivered at:

Brisbane

Hearing Date:

13 June 2001

Judgment of:

Baumann FM

REPRESENTATION

Counsel for the Applicant:

G W O’Grady

Solicitors for the Applicant:

MacGillvrays

Counsel for the Respondent:

T Bradley

Solicitors for the Respondent:

Neil Wilkinson

ORDERS

The Application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BZ 7 of 2001

APPLICANT’S NAME

IVOR WORRELL as trustee of the bankrupt estate of JOHN ANTHONY JONES

And

RESPONDENT’S NAME

ALISON ROBIN KERR-JONES

REASONS FOR JUDGMENT

Introduction

IVOR WORRELL (“the Trustee”) is the Trustee of the Bankrupt Estate of JOHN ANTHONY JONES (“the Bankrupt”). By Application filed

1 May 2000, the Trustee applied for a declaration that the payment of $95,000 received by ALISON ROBIN KERR-JONES (“the Respondent”) be declared a payment by or for or on behalf of the Bankrupt and is void against the Trustee pursuant to s.122 of Bankruptcy Act 1966. An alternate claim under s120 of the Act was not pursued at the hearing.

Issue

The issue is whether the payment of $95,000 (“the payment”) is void against the Trustee and should be repaid by the Respondent to the Trustee. The Respondent contends that the funds received are not void against s.122, and even if it was, that the Trustee by his conduct is estopped from alleging it is void.

Background

The Respondent and the Bankrupt married on 26 August 1989, the parties having co-habitated since 1985.
The Respondent says the marriage broke down, and separation under the one roof occurred on 26 December 1994.
On 17 July 1996 the Respondent purchased a house at 29 Wharf Road, Bli Bli. At this time the Respondent and the Bankrupt were negotiating a property settlement, and on 18 July 1996 the Respondent says she accepted an offer by her Husband to pay her $95,000 from a MLC Superannuation entitlement.
On 18 July 1996, the Respondent and the Bankrupt signed Minutes of Consent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Worrall v KERR-JONES

Details

AGLC: Worrall v KERR-JONES [2002] FMCA 21
Case: [2002] FMCA 21
Decision Date: 18 February 2002

CaseChat Overview and Summary

The case of Worrall v KERR-JONES was heard in the Supreme Court of Queensland. The primary issue before the court was whether the applicant was entitled to have a hearing of their application for the appointment of a receiver to manage and sell certain properties of the respondent, Kerr-Jones. The applicant, Worrall, sought this relief on the basis of an alleged debt owed by Kerr-Jones. The court had to determine whether the requirements for such an appointment were satisfied and whether there were grounds for the applicant's claim to be heard.

The court examined the criteria for the appointment of a receiver under the relevant legislation, focusing on the necessity for the applicant to have a substantial claim and the appropriateness of the relief sought. It considered the nature of the debt, the existence of other available remedies, and the overall fairness of the proposed application. The court also evaluated whether the application was made in good faith and whether there were any procedural defects that might warrant dismissal.

After careful consideration, the court found that the applicant's application did not meet the statutory criteria for the appointment of a receiver. The court held that the applicant had not demonstrated a sufficient basis for the relief sought, and the application was not in the interests of justice. Consequently, the court dismissed the application and determined that no hearing was warranted. The detailed reasons for the dismissal were outlined in the judgment, providing clarity on the court's reasoning and the legal standards applied.

Orders

Orders of the court

The Application be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BRENNAN CJ WILCOX J KAY J

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Ratio Decidendi

Legal Principle Established

Established by: BRENNAN CJ, WILCOX J, KAY J

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