Ashton, Andrew Craig v Prentice, Maxwell William Prentice, Maxwell William v Ashton, Andrew Craig & Ors [1998] FCA 1338

Ashton, Andrew Craig v Prentice, Maxwell William Prentice, Maxwell William v Ashton, Andrew Craig & Ors [1998] FCA 1338

The transfer by Mr Jury to Mr Ashton was void against the Trustee under s 121 (and alternatively s 120) of the Bankruptcy Act 1966. The main purpose of the transfer was to defeat creditors. Consideration was less than market value; the alleged set-off was not genuine, and Mr Ashton was aware of the insolvency and not a good faith transferee. The Trustee is entitled to a transfer of the property (subject to the existing mortgage) on payment of the value of consideration given by Mr Ashton. Application to set aside bankruptcy notice is dismissed as superseded by the successful cross claim.

Parties
Applicant / First Cross Respondent: Andrew Craig Ashton; Respondent / Cross Claimant (trustee): Maxwell William Prentice; Second Cross Respondent: Eric Abraham Jury (Snr); Third Cross Respondent: Sonia Sadie Jury; Fourth Cross Respondent: William Abraham Jury; Fifth Cross Respondent: Houda Jury
Jurisdiction
Australia
Judgment Date
23 October 1998
Procedural Posture
Bankruptcy / Cross Claim / Post Trial Judgment and Orders
Outcome
Trustee's cross claim succeeds; Application to set aside notice dismissed as superseded.
Legal Topics
Setting Aside Bankruptcy Notice, Voidable Transactions Under Bankruptcy Act 1966 S 120 and S 121, Onus of Proof, Apprehended Bias, Admissibility of Examination Transcript
Bankruptcy Practice & Procedure Evidence Setting Aside Bankruptcy Notice Voidable Transactions Under Bankruptcy Act 1966 S 120 and S 121 Onus of Proof Apprehended Bias Admissibility of Examination Transcript

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Parties

Andrew Craig Ashton

Applicant / First Cross Respondent

Maxwell William Prentice

Respondent / Cross Claimant (trustee)

Eric Abraham Jury (Snr)

Second Cross Respondent

Sonia Sadie Jury

Third Cross Respondent

William Abraham Jury

Fourth Cross Respondent

Houda Jury

Fifth Cross Respondent

Procedural Posture

Bankruptcy / Cross Claim / Post Trial Judgment and Orders

Legal Issues

  1. 1 Whether the transfer of property from Mr Jury to Mr Ashton is void against the Trustee under s 121 or s 120 of the Bankruptcy Act 1966
  2. 2 Whether the consideration for the property was less than market value
  3. 3 Whether Mr Ashton was a transferee in good faith and for market value

Ratio Decidendi

The transfer by Mr Jury to Mr Ashton was void against the Trustee under s 121 (and alternatively s 120) of the Bankruptcy Act 1966. The main purpose of the transfer was to defeat creditors. Consideration was less than market value; the alleged set-off was not genuine, and Mr Ashton was aware of the insolvency and not a good faith transferee. The Trustee is entitled to a transfer of the property (subject to the existing mortgage) on payment of the value of consideration given by Mr Ashton. Application to set aside bankruptcy notice is dismissed as superseded by the successful cross claim.

Court Disposition

Trustee's cross claim succeeds; Application to set aside notice dismissed as superseded.

Orders

  • The Trustee is to file and serve draft minutes of order.
  • Application and Cross Claim stood over to hear argument as to the terms of the proposed orders.