Robinson, Maurice Desmond & Anor v Jackson, John Henderson & Anor [1982] FCA 122

Robinson, Maurice Desmond & Anor v Jackson, John Henderson & Anor [1982] FCA 122

The relevant mortgage and payments were made when the debtors were insolvent; the transactions gave Rota-Forma a preference over other creditors; and Rota-Forma was aware or had reason to suspect the debtors' insolvency and that the transactions would give it such preference. Consequently, Rota-Forma did not act in good faith for the purposes of protection under s.122, and the transactions are void as against the trustee.

Parties
Debtor: Maurice Desmond Robinson; Debtor: Stephen Michael Robinson; Trustee/applicant: John Henderson Jackson; Respondent: Rota-Forma Pty. Ltd.
Jurisdiction
Australia
Judgment Date
24 June 1982
Procedural Posture
Bankruptcy Application / Judgment on Application by Trustee Under Part X of the Bankruptcy Act 1966
Outcome
Declaration that the mortgage (as against the trustee) and payments are void to the extent of $25,301.85; repayment and costs ordered.
Legal Topics
Avoidance of Preference, Mortgage Securing Antecedent Indebtedness, Good Faith of Creditor, Payment by Insolvents, Trustee's Powers Under Deed of Arrangement
Bankruptcy Avoidance of Preference Mortgage Securing Antecedent Indebtedness Good Faith of Creditor Payment by Insolvents Trustee's Powers Under Deed of Arrangement

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Parties

Maurice Desmond Robinson

Debtor

Stephen Michael Robinson

Debtor

John Henderson Jackson

Trustee/applicant

Rota-Forma Pty. Ltd.

Respondent

Procedural Posture

Bankruptcy Application / Judgment on Application by Trustee Under Part X of the Bankruptcy Act 1966

Legal Issues

  1. 1 Whether mortgage securing antecedent debt and two payments to a creditor are void as preferences under s.122 Bankruptcy Act 1966
  2. 2 Whether the debtors were unable to pay their debts as they became due at the time of the transactions
  3. 3 Whether creditor Rota-Forma acted in good faith so as to be protected by Bankruptcy Act s.122(2), (3), (4)

Ratio Decidendi

The relevant mortgage and payments were made when the debtors were insolvent; the transactions gave Rota-Forma a preference over other creditors; and Rota-Forma was aware or had reason to suspect the debtors' insolvency and that the transactions would give it such preference. Consequently, Rota-Forma did not act in good faith for the purposes of protection under s.122, and the transactions are void as against the trustee.

Court Disposition

Declaration that the mortgage (as against the trustee) and payments are void to the extent of $25,301.85; repayment and costs ordered.

Orders

  • Declaration avoiding as against the applicant the mortgage to the extent it secures $25,301.85 and two payments totalling that sum
  • Respondent to pay $25,301.85 to the applicant