Ashton v Prentice, in the matter of Jury (No 2) [1999] FCA 1556

Ashton v Prentice, in the matter of Jury (No 2) [1999] FCA 1556

Both motions were dismissed. Mr Prentice had already satisfied his obligation under s 121(5) by paying Mr Ashton's mortgagees, to Mr Ashton's benefit, an amount at least equal to the $345,000 consideration found to have been given for the transfer; the additional interest, fees and rates claimed by Mr Ashton were not consideration for the transfer. Mr Prentice's claim for $54,991.50 based on subrogation was not made before Hill J and could not be entertained by the Full Court for the first time after the appeal on the basis of the later mortgage discharge.

Jurisdiction
Australia
Judgment Date
11 November 1999
Procedural Posture
Bankruptcy and Practice and Procedure / Two Motions Before the Full Court After Determination of an Appeal, Seeking Variation of Prior Orders and Payment Orders
Outcome
Both motions dismissed; no orders as to the costs of either motion.
Legal Topics
['transfer to Defeat Creditors' 'void Transfer Against Trustee' 'consideration Payable to Transferee Under S 121(5)' 'mortgage Discharge' 'subrogation' 'variation of Orders']
['bankruptcy' 'practice and Procedure'] ['transfer to Defeat Creditors' 'void Transfer Against Trustee' 'consideration Payable to Transferee Under S 121(5)' 'mortgage Discharge' 'subrogation' 'variation of Orders']

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Procedural Posture

Bankruptcy and Practice and Procedure / Two Motions Before the Full Court After Determination of an Appeal, Seeking Variation of Prior Orders and Payment Orders

Legal Issues

  1. 1 ["Whether the trustee's payment to the transferee's mortgagees of an amount equal to the value of the consideration given by the transferee satisfied subs 121(5) of the Bankruptcy Act 1966 (Cth)." 'Whether interest, loan establishment costs, security costs, stamp duty and local government rates paid by the transferee constituted consideration given for the transfer within subs 121(5) of the Bankruptcy Act 1966 (Cth).' "Whether the Full Court should entertain, after determination of the appeal, the trustee's claim to be subrogated to the mortgagees' rights against the transferee based on the trustee's later discharge of the mortgage."]

Ratio Decidendi

Both motions were dismissed. Mr Prentice had already satisfied his obligation under s 121(5) by paying Mr Ashton's mortgagees, to Mr Ashton's benefit, an amount at least equal to the $345,000 consideration found to have been given for the transfer; the additional interest, fees and rates claimed by Mr Ashton were not consideration for the transfer. Mr Prentice's claim for $54,991.50 based on subrogation was not made before Hill J and could not be entertained by the Full Court for the first time after the appeal on the basis of the later mortgage discharge.

Court Disposition

Both motions dismissed; no orders as to the costs of either motion.

Orders

  • ['Both motions be dismissed.']