Case: Bibra Lake Holdings Pty Ltd v Firmadoor Australia Pty Ltd 7 (1992) ACSR 380
Outcome: cited
Sandos points out that, in a proceeding under Division 2 of Part 5.7B of the Act, in respect of an insolvent transaction, the liquidator is a necessary party to a proceeding for recovery. Moneys paid in circumstances that create a preference, and which are recoverable under Division 2, are moneys recoverable for the benefit of the creditors of the company generally. Such moneys are not property of the company in liquidation; nor are they moneys owed by the recipient as a debt to the company. Accordingly, a liquidator must sue in his or her own name, in the interest of the creditors, to recover a payment that is void as against the liquidator (see Bibra Lake Holdings Pty Ltd v Firmadoor Australia Pty Ltd 7 (1992) ACSR 380 at 386). 34 An insolvent transaction that is an unfair preference is voidable. There are defences to a claim for payment under Division 2. However, there is no apparent defence to a claim under s 569. It is clear that what is to be paid to a liquidator under that section is the amount recovered by way of attachment, in this case the garnishee order to the Bank. I consider that money received by a liquidator pursuant to s 569 is received by the liquidator as agent for his or her company. 35 Sandos does not contend that the liability that arises by operation of s 569 is not a debt within the meaning of s 459E. Rather, it contends that that debt is owed to the Liquidators and not to Southern. The statutory demand in this case was signed on behalf of Southern by one of the Liquidators in his capacity as one of Southern's joint and several liquidators. Accordingly, it was a demand by Southern and not a demand by the Liquidators. 36 Any moneys received by the Liquidators or received by Sandos will be available as part of the fund available on the winding up of Sandos. While Sandos, notwithstanding that it is being wound up, continues as a separate corporate entity, whose mind is that of its liquidators, there is but one fund available for application in the winding up of Sandos. It is clear enough that the demand related to the sum garnisheed by Sandos from the Bank. Clearly, the demand was being made under s 569 of the Act. I do not consider that the fact the demand purports to be by Southern rather than by the Liquidators is anything more than a formal defect, if it is indeed a defect. I have already concluded that no substantial injustice has been caused by the form of the demand. 37 There is no basis for concluding that there is a genuine dispute between Sandos and either Southern or the Liquidators as to whether s 569 operates. I do not consider that there is a basis for setting aside the demand on this final ground. 38 The application should be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 29 June 2007 Counsel for the Plaintiff: A Narayan Solicitor for the Plaintiff: Aiken Lawyers Counsel for the Defendants: J Evans Solicitor for the Defendants: Wollan &amp; Associates Pty Ltd Date of Hearing: 1 June 2007 Date of Judgment: 29 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/975.html