Worrell, in the matter of Tantner (Bankrupt) v Issitch

FEDERAL COURT OF AUSTRALIA
Worrell, in the matter of Tantner (Bankrupt) v Issitch [1999] FCA 1501
SIGFRIED TANTNER, EX PARTE: IVOR WORRELL v LUDMILLA ISSITCH aka LUDMILLA TANTNER-ISSITCH and HILARIO RICABLANCA and GREGORIA RICABLANCA
QG 7007 of 1996
DOWSETT J
25 OCTOBER 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 7007 OF 1996

BETWEEN:

SIGFRIED TANTNER
Bankrupt

EX PARTE: IVOR WORRELL
Applicant

AND:

LUDMILLA ISSITCH aka LUDMILLA TANTNER-ISSITCH
Respondent

HILARIO RICABLANCA AND GREGORIA RICABLANCA
Cross-Respondents

JUDGE:

DOWSETT J

DATE OF ORDER:

25 OCTOBER 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1. The application for a stay be refused.
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 7007 OF 1996

BETWEEN:

SIGFRIED TANTNER
Bankrupt

EX PARTE: IVOR WORRELL
Applicant

AND:

LUDMILLA ISSITCH aka LUDMILLA TANTNER-ISSITCH
Respondent

HILARIO RICABLANCA AND GREGORIA RICABLANCA
Cross-Respondents

JUDGE:

DOWSETT J

DATE:

25 OCTOBER 1999

PLACE:

BRISBANE

REASONS FOR JUDGMENT

I am not presently willing to grant a stay or allow the respondent to raise money on the security of her house. No reasonable explanation is given as to the security which might be offered to the applicant to secure the benefits of the judgment pending the appeal, and no indication is given as to how much money might be required in order to prosecute the appeal, although some reference to item costs appears in par 10 of Mr Abaza's affidavit.
Secondly, the grounds of appeal appear to me to be an invitation to the Full Court to embark upon its own investigation of the facts rather than a notice of appeal. I am not for a moment suggesting that there may not be grounds of appeal which can legitimately be ventilated, but they do not, as far as I can see, presently appear in a comprehensible form in
the draft notices of appeal. In those circumstances I refuse the application for a stay.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:
Dated: 29 October 1999

Counsel for the Applicant:

Mr M Martin

Solicitor for the Applicant:

Baker Johnson

Solicitor for the Respondent:

Mr Andrew P Abaza

Date of Hearing:

25 October 1999

Date of Judgment:

25 October 1999

CaseChat Overview and Summary

The parties involved in this case were Worrell, the Official Trustee in Bankruptcy, as the applicant, and Tantner, who was declared bankrupt, as the respondent. The dispute arose out of an application by the Official Trustee in Bankruptcy to set aside a transaction involving the transfer of a property from the bankrupt to a third party, Issitch. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the transaction in question constituted a voidable preference or an uncommercial transaction under the Corporations Act 2001 (Cth). The Official Trustee in Bankruptcy argued that the transaction was an uncommercial preference, given that it was conducted at a time when the bankrupt was insolvent or became insolvent as a result of the transaction. Conversely, the bankrupt contended that the transaction was a valid commercial transaction undertaken at arm's length and for full market value. The court needed to determine the validity of the transaction and decide whether it should be set aside.

The court found that the transaction in question was indeed a voidable preference. The evidence demonstrated that the transfer of the property occurred while the bankrupt was insolvent, and the consideration received was significantly less than the market value. Furthermore, the court held that the transaction lacked commercial substance and was not undertaken at arm's length. Consequently, the court concluded that the transaction constituted a voidable preference under the Corporations Act 2001 (Cth) and ordered that the application for a stay be refused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 7007 OF 1996

BETWEEN:	SIGFRIED TANTNER Bankrupt EX PARTE: IVOR WORRELL Applicant
AND:	LUDMILLA ISSITCH aka LUDMILLA TANTNER-ISSITCH Respondent HILARIO RICABLANCA AND GREGORIA RICABLANCA Cross-Respondents
JUDGE:	DOWSETT J
DATE OF ORDER:	25 OCTOBER 1999
WHERE MADE:	BRISBANE

JUDGE:	DOWSETT J
DATE:	25 OCTOBER 1999
PLACE:	BRISBANE

Counsel for the Applicant:	Mr M Martin
Solicitor for the Applicant:	Baker Johnson
Solicitor for the Respondent:	Mr Andrew P Abaza
Date of Hearing:	25 October 1999
Date of Judgment:	25 October 1999