Agusta Pty Ltd v Provident Capital Ltd [2012] NSWCA 26

Agusta Pty Ltd v Provident Capital Ltd [2012] NSWCA 26

The alienation of the Kings Park land by Agusta to Riva did not delay or hinder Provident in recovering its judgment debt, as execution by writ was never available to Provident against trust property over the valid opposition of Agusta as trustee. Both before and after the alienation, Provident was only entitled to assert rights by subrogation to the trustee's indemnity and seek equitable execution. Therefore, the transfer was not made with intent to defraud creditors under s 37A, and the appeal is allowed.

Parties
First Appellant: Agusta Pty Ltd; Second Appellant: Riva Pty Ltd; First Respondent: Provident Capital Pty Ltd
Jurisdiction
Australia
Judgment Date
08 March 2012
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal allowed
Legal Topics
Conveyancing, Trusts and Trustees, Voluntary Alienation to Defraud Creditors, Enforcement of Judgments, Trustee's Right of Indemnity, Subrogation of Creditors
Real Property Equity Civil Procedure Conveyancing Trusts and Trustees Voluntary Alienation to Defraud Creditors Enforcement of Judgments Trustee's Right of Indemnity +1 more

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Parties

Agusta Pty Ltd

First Appellant

Riva Pty Ltd

Second Appellant

Provident Capital Pty Ltd

First Respondent

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the alienation of land by Agusta to Riva was made with intent to defraud creditors under s 37A of the Conveyancing Act 1919
  2. 2 Whether Provident could have enforced its money judgment by writ of execution against trust property
  3. 3 Whether the transfer impeded Provident's ability to recover its judgment debt

Ratio Decidendi

The alienation of the Kings Park land by Agusta to Riva did not delay or hinder Provident in recovering its judgment debt, as execution by writ was never available to Provident against trust property over the valid opposition of Agusta as trustee. Both before and after the alienation, Provident was only entitled to assert rights by subrogation to the trustee's indemnity and seek equitable execution. Therefore, the transfer was not made with intent to defraud creditors under s 37A, and the appeal is allowed.

Court Disposition

Appeal allowed

Orders

  • Orders 3, 4, 6 and 7 made on 27 April 2011 by the Court below be set aside.
  • Order that the respondent take such steps as are within its power to bring about removal of the following notation from folio identifier 29/263860: 'AF597049 NOTE: NO DEALINGS TO BE REGISTERED. REFER ALL INQUIRIES TO LEG2. SEE LM220100868'