TOLCHER & ORS v JOHN DANKS AND SON PTY LTD [2007] NSWSC 1207

TOLCHER & ORS v JOHN DANKS AND SON PTY LTD [2007] NSWSC 1207

The company was insolvent from at least the end of May 2005; the weekly payments made to the defendant during the relation-back period constituted unfair preferences within s 588FA. The defendant did not establish the good faith defence under s 588FG(2). Judgment is for repayment of the $140,000 in challenged payments.

Parties
First Plaintiff: Raymond George Tolcher; Second Plaintiff: Robert William Whitton; Third Plaintiff: Waddell & Son Pty Ltd (In Liq); Defendant: John Danks and Son Proprietary Ltd
Jurisdiction
Australia
Judgment Date
01 November 2007
Procedural Posture
Corporations Liquidation / Final Judgment
Outcome
Judgment for the plaintiffs
Legal Topics
Unfair Preferences, Liquidation, Voidable Transactions, Insolvency, Franchise Agreements
Corporations Insolvency Equity Unfair Preferences Liquidation Voidable Transactions Franchise Agreements

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Parties

Raymond George Tolcher

First Plaintiff

Robert William Whitton

Second Plaintiff

Waddell & Son Pty Ltd (In Liq)

Third Plaintiff

John Danks and Son Proprietary Ltd

Defendant

Procedural Posture

Corporations Liquidation / Final Judgment

Legal Issues

  1. 1 Were the weekly payments of $7,000 by Waddell & Son Pty Ltd (In Liq) to John Danks and Son Pty Ltd unfair preferences within s 588FA of the Corporations Act?
  2. 2 Was the company insolvent during the relevant period as defined in s 95A of the Corporations Act?
  3. 3 Does s 588FA(3) relating to a continuing business relationship apply to the transactions?

Ratio Decidendi

The company was insolvent from at least the end of May 2005; the weekly payments made to the defendant during the relation-back period constituted unfair preferences within s 588FA. The defendant did not establish the good faith defence under s 588FG(2). Judgment is for repayment of the $140,000 in challenged payments.

Court Disposition

Judgment for the plaintiffs

Orders

  • Give judgment for the plaintiffs for $140,000.00 with costs.
  • Reserve further consideration of interest.