An unfair preference is not, without more, capable of constituting an uncommercial transaction under s 588FB of the Corporations Act 2001 (Cth), as a matter of statutory structure (s 588FE(2) would add nothing to s 588FE(3) if every preference were also uncommercial). However, where the overall transaction had as its purpose that some creditors would be paid leaving others unpaid in a contemplated winding up, the transaction may constitute an uncommercial transaction even though it has the hallmarks of a preference and did not entail a disposition at undervalue. The purpose element under s 588FE(5) requires only that the defeating purpose be one of the company's purposes, not the sole or main purpose — a lower threshold than the 'main purpose' requirement under s 121(1) of the Bankruptcy Act 1966 (Cth).
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