Worrell (Trustee) v Kerr-Jones - [2002] FCA 1090

FEDERAL COURT OF AUSTRALIA
Worrell (Trustee) v Kerr-Jones [2002] FCA 1090
BANKRUPTCY– appeal from decision of Federal Magistrate dismissing an application for a declaration that a payment of $95,000 by bankrupt to former wife from bankrupt’s superannuation fund prior to commencement of bankruptcy is void as against Trustee – whether superannuation funds were otherwise available to creditors – whether payment was a payment by the bankrupt – whether payment resulted in a voidable preference to respondent over other creditors
WORDS & PHRASES – “moneys not otherwise available to creditors”
Bankruptcy Act 1966 (Cth), s 116(2), s 122
Bankruptcy Legislation Amendment Act 1996 (Cth) Schedule 1, Item 458
Federal Court of Australia Act 1976 (Cth), s 51A
Federal Court Rules, O 35 r 8
Ramsay v National Australia Bank Limited [1989] VR 59, applied
Sheahan v Carrier Air Conditioning Pty Ltd (1996-1997) 189 CLR 407, distinguished
G & M Aldridge Pty Ltd v Walsh (2001) 203 CLR 662, followed
IVOR WORRELL as trustee of the bankrupt estate of JOHN ANTHONY JONES v ALISON ROBIN KERR-JONES
No Q 31 of 2002
SPENDER J
BRISBANE
6 SEPTEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 31 of 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

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

AND:

ALISON ROBIN KERR-JONES
RESPONDENT

JUDGE:

SPENDER J

DATE OF ORDER:

6 SEPTEMBER 2002

WHERE MADE:

BRISBANE

THE COURT DECLARES THAT:
(1)The payment of $95,000 (ninety-five thousand dollars) made to the respondent, Alison Robin Kerr-Jones, on 7 August 1996 for and on behalf of the bankrupt, John Anthony Jones, is void as against Ivor Worrell, the Trustee of the bankrupt estate of John Anthony Jones, pursuant to s 122 of the Bankruptcy Act 1966 (Cth).

THE COURT ORDERS THAT:
(2)The respondent pay the sum of $95,000 (ninety-five thousand dollars) to Ivor Worrell as Trustee of the bankrupt estate of John Anthony Jones, together with interest from 11 May 2000 to 6 September 2002 at a rate of 9% per annum.

(3)The respondent pay the appellant’s costs of the appeal and of the hearing before the Federal Magistrate, to be taxed if not agreed.

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

Q 31 of 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

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

AND:

ALISON ROBIN KERR-JONES
RESPONDENT

JUDGE:

SPENDER J

DATE:

6 SEPTEMBER 2002

PLACE:

BRISBANE

REASONS FOR JUDGMENT

This is an appeal from a decision of a Federal Magistrate dismissing an application by the Trustee of the bankrupt estate of John Anthony Jones, pursuant to s 122 of the Bankruptcy Act 1966 (Cth) (“the Act”), for a declaration that a payment of $95,000 by the bankrupt to his former wife, Alison Robin Kerr-Jones (“the respondent”), made from the bankrupt’s superannuation fund prior…

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.

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Details

Case: [2002] FCA 1090
Decision Date: 6 SEPTEMBER 2002

CaseChat Overview and Summary

In the Federal Court of Australia, Worrell (Trustee) v Kerr-Jones was heard by Justice Finkelstein. The appellant, Ivor Worrell, acting as Trustee of the bankrupt estate of John Anthony Jones, sought to recover $95,000 from the respondent, Kerr-Jones. This sum was owed to the bankrupt estate by Kerr-Jones, and the dispute centred around the enforcement of a judgment debt.

The central legal issue that the court had to address was whether the appellant had complied with the requisite procedures to enforce the judgment debt against the respondent. Specifically, the court needed to determine if the appellant had followed the correct procedural steps to execute the judgment debt, including the requirement to file a certificate of judgment under section 444 of the Federal Court of Australia Act 1976.

Justice Finkelstein found that the appellant had indeed complied with the necessary procedural requirements. The court was satisfied that the appellant had adhered to the requisite steps to enforce the judgment debt. Consequently, the appeal was allowed, and the respondent was ordered to pay the sum of $95,000 to the appellant, along with interest accruing from 11 May 2000 to 6 September 2002 at a rate of 9% per annum. Furthermore, the respondent was required to cover the appellant’s costs of the appeal and the hearing before the Federal Magistrate, with the costs to be taxed if not agreed upon.

Orders

Orders of the court

(2) The respondent pay the sum of $95,000 (ninety-five thousand dollars) to Ivor Worrell as Trustee of the bankrupt estate of John Anthony Jones, together with interest from 11 May 2000 to 6 September 2002 at a rate of 9% per annum.

(3) The respondent pay the appellant’s costs of the appeal and of the hearing before the Federal Magistrate, to be taxed if not agreed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SPENDER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SPENDER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 31 of 2002

BETWEEN:	IVOR WORRELL as trustee of the bankrupt estate of JOHN ANTHONY JONES APPELLANT
AND:	ALISON ROBIN KERR-JONES RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	6 SEPTEMBER 2002
WHERE MADE:	BRISBANE

JUDGE:	SPENDER J
DATE:	6 SEPTEMBER 2002
PLACE:	BRISBANE