Florance, J.L. & Anor v. Andrew, W.E. [1985] FCA 49

Florance, J.L. & Anor v. Andrew, W.E. [1985] FCA 49

The grants of options did not constitute settlements void under s. 120(1) as the sequestration order was made more than two years after their execution; Mrs. Florance was not a purchaser for valuable consideration in the commercial sense; there was no intent to defraud creditors, and fresh evidence was not admitted; the matter is remitted for determination under s. 120(2).

Parties
First Appellant: James Louis Florance; Second Appellant: Jean Margaret Florance; Respondent: William Edward Andrew
Jurisdiction
Australia
Judgment Date
27 February 1985
Procedural Posture
Appeal / Full Court Decision, Remittal to Single Judge for Further Hearing
Outcome
Appeal allowed in relation to s. 120(1), dismissed in relation to s. 121; cross-appeal dismissed; proceeding remitted for further hearing under s. 120(2); no order as to costs.
Legal Topics
Sequestration Order, Dispositions to Defraud Creditors, Settlement of Property, Options to Purchase Real Estate, Valuable Consideration, Fresh Evidence on Appeal
Bankruptcy Sequestration Order Dispositions to Defraud Creditors Settlement of Property Options to Purchase Real Estate Valuable Consideration Fresh Evidence on Appeal

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Parties

James Louis Florance

First Appellant

Jean Margaret Florance

Second Appellant

William Edward Andrew

Respondent

Procedural Posture

Appeal / Full Court Decision, Remittal to Single Judge for Further Hearing

Legal Issues

  1. 1 Whether the options granted by the bankrupt to his wife constituted settlements of property void against the trustee under ss. 120, 121 of the Bankruptcy Act 1966
  2. 2 Whether the wife was a purchaser for value within para. 120(1)(a)
  3. 3 Whether the dispositions were made with intent to defraud creditors

Ratio Decidendi

The grants of options did not constitute settlements void under s. 120(1) as the sequestration order was made more than two years after their execution; Mrs. Florance was not a purchaser for valuable consideration in the commercial sense; there was no intent to defraud creditors, and fresh evidence was not admitted; the matter is remitted for determination under s. 120(2).

Court Disposition

Appeal allowed in relation to s. 120(1), dismissed in relation to s. 121; cross-appeal dismissed; proceeding remitted for further hearing under s. 120(2); no order as to costs.

Orders

  • Proceeding remitted to Sweeney J. for further hearing and determination, including the taking of further evidence on matters relevant to s. 120(2) of the Bankruptcy Act 1966.
  • Order for costs made by Sweeney J. confirmed; otherwise the appeal allowed.