Re Clarke, E.C. v. Ex parte Taylor, A.R. [1988] FCA 87

Re Clarke, E.C. v. Ex parte Taylor, A.R. [1988] FCA 87

The transfer of property occurred within six months prior to the presentation of the bankruptcy petition and was not in the ordinary course of business; thus, it is void as against the trustee pursuant to s.122 of the Bankruptcy Act 1966.

Jurisdiction
Australia
Judgment Date
04 March 1988
Procedural Posture
Bankruptcy Application / Judgment
Outcome
The transfer is void as against the trustee under s.122 of the Bankruptcy Act 1966.
Legal Topics
['avoidance of Preference' 'fraudulent Disposition of Property' 'transfer of Property in Insolvency']
['bankruptcy'] ['avoidance of Preference' 'fraudulent Disposition of Property' 'transfer of Property in Insolvency']

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Procedural Posture

Bankruptcy Application / Judgment

Legal Issues

  1. 1 ['Whether the transfer of property from the bankrupt to his children was void as a preference within s.122 of the Bankruptcy Act 1966' 'Whether the transfer constituted a fraudulent disposition within s.121 of the Bankruptcy Act 1966' 'When the conveyance or transfer of property legally occurred']

Ratio Decidendi

The transfer of property occurred within six months prior to the presentation of the bankruptcy petition and was not in the ordinary course of business; thus, it is void as against the trustee pursuant to s.122 of the Bankruptcy Act 1966.

Court Disposition

The transfer is void as against the trustee under s.122 of the Bankruptcy Act 1966.

Orders

  • ['Allan John Clarke and Wendy Pauline Clarke are to transfer the property at 364 Old Cleveland Road, Coorparoo, to Alan Richard Taylor as trustee of the property of Ernest Charles Clarke.' 'The respondents are to pay the applicant his taxed costs of and incidental to the application.']