Morse v Riley (No 5) [2014] NSWSC 810

Morse v Riley (No 5) [2014] NSWSC 810

The first plaintiff was a creditor and a person prejudiced by the transfer. The transfer was for $1, was registered the day before the return of the plaintiffs' motion for an asset preservation order, occurred after the first defendant indicated he could no longer defend the plaintiffs' claim, and no other explanation for it was advanced. Those circumstances gave rise to an overwhelming inference that the first defendant intended at least to delay or hinder, and to remove the property from the purview of, the plaintiffs' claims. Section 58(3) of the Bankruptcy Act 1966 (Cth) did not bar determination of this aspect because no relief was sought against the first defendant and the result...

Jurisdiction
Australia
Judgment Date
13 June 2014
Procedural Posture
Common Law Claim for Damages and Declaratory Relief Concerning a Transfer Alleged to Be Voidable Under S 37 a of the Conveyancing Act 1919 (nsw) / Hearing of the Plaintiffs' Claim; Ex Tempore Principal Judgment Granting Declarations and Orders
Outcome
Declarations made that the transfer was made with an intention to defraud creditors and was void pursuant to s 37A of the Conveyancing Act 1919; transfer set aside; liberty to apply granted.
Legal Topics
['declaratory Relief' 'fraudulent Disposition' 'voluntary Alienation to Defraud Creditors' 'asset Preservation Order' 'bankruptcy Stay']
['common Law' 'property Law' 'bankruptcy' 'civil Procedure'] ['declaratory Relief' 'fraudulent Disposition' 'voluntary Alienation to Defraud Creditors' 'asset Preservation Order' 'bankruptcy Stay']

Case Brief

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Procedural Posture

Common Law Claim for Damages and Declaratory Relief Concerning a Transfer Alleged to Be Voidable Under S 37 a of the Conveyancing Act 1919 (nsw) / Hearing of the Plaintiffs' Claim; Ex Tempore Principal Judgment Granting Declarations and Orders

Legal Issues

  1. 1 ['Whether the transfer by the first defendant to the second defendant of his interest in the land comprised in Folio Identifier 484/9406 was made with intent to defraud creditors within s 37A of the Conveyancing Act 1919 (NSW).' 'Whether the first plaintiff was a person prejudiced by the transfer and had standing to seek relief under s 37A of the Conveyancing Act 1919 (NSW).' 'Whether the absence of leave from the Federal Court or the Federal Circuit Court of Australia under s 58(3) of the Bankruptcy Act 1966 (Cth) prevented the Court from determining the claim against the second defendant.']

Ratio Decidendi

The first plaintiff was a creditor and a person prejudiced by the transfer. The transfer was for $1, was registered the day before the return of the plaintiffs' motion for an asset preservation order, occurred after the first defendant indicated he could no longer defend the plaintiffs' claim, and no other explanation for it was advanced. Those circumstances gave rise to an overwhelming inference that the first defendant intended at least to delay or hinder, and to remove the property from the purview of, the plaintiffs' claims. Section 58(3) of the Bankruptcy Act 1966 (Cth) did not bar determination of this aspect because no relief was sought against the first defendant and the result...

Court Disposition

Declarations made that the transfer was made with an intention to defraud creditors and was void pursuant to s 37A of the Conveyancing Act 1919; transfer set aside; liberty to apply granted.

Orders

  • ['Declare that the transfer by the first defendant to the second defendant on or about 11 February 2014 of his interest in the land comprised in Folio Identifier 484/9406 was made with an intention to defraud his creditors.' 'Declare that the transfer by the first defendant to the second defendant on or about 11...