Friday 9th August 2019
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Bob Jones has lost a Supreme Court appeal over rental payments to one of his companies for the firm formerly known as Blue Chip.
The property magnate has fought for years with the liquidators for Blue Chip, which is now called Northern Crest. The finance company had leased a building owned by Jones.
Back in 2017 at the High Court stage, liquidators Anthony McCullagh and Stephen Lawrence argued Jones's company Robt Jones Holdings skipped the queue when it received payments ahead of other creditors.
The liquidators sought to make about $800,000 in payments made to Jones's company voidable.
Liquidators can apply to void a transaction if they believe it has left other creditors at a disadvantage and can meet a statutory test. Doing so puts the money back into the liquidators’ pool to be distributed among creditors.
Having lost in the High Court and Court of Appeal, lawyers for Jones went to the Supreme Court in April this year to argue the transaction was not voidable under the Companies Act.
There were two payments made to satisfy the rent owing, one made by a third party Columbus, and the other by a Northern Crest subsidiary. While the case originally concerned both payments, at the Supreme Court stage the fight was only over about $200,000 paid by the Northern Crest subsidiary.
The Supreme Court allowed the appeal on the question of whether a transaction was only voidable if it actually lowered the amount available to creditors. The other aspects of the test were already met.
Robt Jones Holdings argued the payments were effectively a loan so didn’t actually reduce the pool to creditors.
The lawyer for the liquidators said the voidable transactions regime should be simple and cost-effective, and taking Robt Jones Holdings' approach and analysing the source of payments would create lengthy litigation, as it had in the present case.
After reviewing the law in Australia, Canada and the United Kingdom, Justices Susan Glazebrook, Mark O’Regan, Ellen France, Terence Arnold and Stephen Kos found in favour of the liquidators.
In a unanimous decision, the judges wrote that even if the payment from the Northern Crest subsidiary was a loan, it was still an insolvent transaction. Liquidators do not need to establish anything more than that there was a payment, the court said.
According to their most recent report, the liquidators have already received about $731,000 from Jones's company which was being on trust pending the outcome of the case.
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