Wily v Bartercard [2000] NSWSC 372

Wily v Bartercard [2000] NSWSC 372

The evidence established a consensual arrangement on 28 August 1996 under which Bartercard terminated the Central Coast licence, took over BBX's business, and set off an agreed value of $110020 against BBX's debt. That arrangement had legal consequences by contract or equitable estoppel and was a transaction for s 588FA. BBX was insolvent at the time, the transaction occurred within six months of the relation-back day, and it enabled Bartercard to receive the business value and the benefit of the set-off in respect of its unsecured debt, which was more than it would have received if the transaction were set aside and it proved in the winding up. The transaction was therefore an unfair...

Jurisdiction
Australia
Judgment Date
09 May 2000
Procedural Posture
Corporations Winding Up Proceeding Concerning a Voidable Transaction and Unfair Preference / Judgment After Hearing of the Plaintiffs' Claim for a Declaration Under S 588 FE of the Corporations Law and Orders Under S 588 FF of the Corporations Law
Outcome
Declaration and orders as sought by plaintiffs.
Legal Topics
['winding Up' 'voidable Transaction' 'unfair Preference' 'meaning of Transaction' 'set Off' 'termination of Licence Agreement' 'goodwill Valuation']
['corporations' 'insolvency' 'equity'] ['winding Up' 'voidable Transaction' 'unfair Preference' 'meaning of Transaction' 'set Off' 'termination of Licence Agreement' 'goodwill Valuation']

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Procedural Posture

Corporations Winding Up Proceeding Concerning a Voidable Transaction and Unfair Preference / Judgment After Hearing of the Plaintiffs' Claim for a Declaration Under S 588 FE of the Corporations Law and Orders Under S 588 FF of the Corporations Law

Legal Issues

  1. 1 ['Whether there was an agreement or arrangement between BBX and Bartercard on 28 August 1996 for termination of the Central Coast licence and transfer of the business assets to Bartercard.' 'Whether that agreement or arrangement was a transaction for the purposes of s 588FA of the Corporations Law.' 'Whether the transaction resulted in Bartercard receiving, in respect of an unsecured debt owed by BBX, more than it would receive if the transaction were set aside and Bartercard proved for the debt in the winding up.' 'What remedy should be ordered under s 588FF of the Corporations Law.']

Ratio Decidendi

The evidence established a consensual arrangement on 28 August 1996 under which Bartercard terminated the Central Coast licence, took over BBX's business, and set off an agreed value of $110020 against BBX's debt. That arrangement had legal consequences by contract or equitable estoppel and was a transaction for s 588FA. BBX was insolvent at the time, the transaction occurred within six months of the relation-back day, and it enabled Bartercard to receive the business value and the benefit of the set-off in respect of its unsecured debt, which was more than it would have received if the transaction were set aside and it proved in the winding up. The transaction was therefore an unfair...

Court Disposition

Declaration and orders as sought by plaintiffs.

Orders

  • ["Declare that the transaction by which the defendant set off an estimate of the value of the second plaintiff's business against amounts owing by the second plaintiff to the defendant is a voidable transaction for the purposes of s 588FE of the Corporations Law." 'Order that the defendant pay Business Barter...