Judges: DIXON CJ
KITTO J
TAYLOR J
MENZIES J

WINDEYER J

Subject References:
Corporations
Liquidation
Preference
Protection of payments made in good faith and in the ordinary course of business

Legislative References:
Companies Act 1931 (Qld) - s 275
Bankruptcy Act 1924 (Cth) - s 95

Judgment date: 25 February 1964

MELBOURNE (HEARD IN BRISBANE)

Judgment by:
WINDEYER J

I concur in the view that this appeal should be dismissed. The question whether a payment was "in the ordinary course of business" must be determined having regard to the effect that old phrase now has in its context in the Bankruptcy Act. But in determining that, the meaning and consequences that it had in bankruptcy law in the past ought not to be overlooked. It goes back to the days when bankruptcy law concerned only traders. It postulates, it seems to me, the carrying on of a business of some kind by someone, in the course of which payments are made or received. In its context in s. 95 it attracts attention, I think, both to the business of the payer, if he be in business, and to the business of the payee, if he be in business, so that one asks was the questioned payment one that would be made by the payer and received by the payee in the ordinary course of a business transaction between them. A transaction that amounts to a preference in fact is not to be seen only from one aspect when the application of s. 95 is under consideration. It must be seen in the light of all the circumstances. So regarded, the payments in question in this case cannot, I think, be supported and are void as against the liquidator.