Ivanovski v Keith Stevens McConnell as representative of the estate of Walter Perdacher (deceased) [2009] NSWSC 1036

Ivanovski v Keith Stevens McConnell as representative of the estate of Walter Perdacher (deceased) [2009] NSWSC 1036

The plaintiffs proved the Loan Agreement, Walter Perdacher's default and the plaintiffs' termination, entitling them to judgment against the estate for accrued interest and loss of bargain damages. The transfer of Walter's interest in the Property to Marie Perdacher occurred when he was heavily indebted, in default, aware of imminent proceedings, and for no valuable consideration on the face of the instrument; it placed a real asset beyond creditors' reach and no credible non-fraudulent motivation or valuable consideration was established. The transfer severed the joint tenancy, and the Court could make orders transferring an undivided one half share to the estate as tenant in common...

Jurisdiction
Australia
Judgment Date
30 September 2009
Procedural Posture
Contract Loan Claim and Fraudulent Conveyance Claim in the Supreme Court of New South Wales, Equity Division, Commercial List / Principal Judgment After Hearing
Outcome
Judgment for the plaintiffs against the first defendant in the amount of $3,536,846.04 to be adjusted to bring the amount up to date; transfer of Lot 153 on Registered Plan 144770 set aside and second defendant required to sign documents to transfer an undivided one half share to the estate of Walter Perdacher as...
Legal Topics
['loan Agreement' 'default in Payment of Interest' 'termination for Breach and Repudiation' 'damages for Loss of Bargain' 'alienation of Property With Intent to Defraud Creditors' 'property Law Act 1974 (qld) S 228' 'joint Tenancy and Severance' 'representative of Deceased Estate']
['contract' 'real Property' 'equity' 'civil Procedure'] ['loan Agreement' 'default in Payment of Interest' 'termination for Breach and Repudiation' 'damages for Loss of Bargain' 'alienation of Property With Intent to Defraud Creditors' 'property Law Act 1974 (qld) S 228' 'joint Tenancy and Severance' 'representative of Deceased Estate']

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Procedural Posture

Contract Loan Claim and Fraudulent Conveyance Claim in the Supreme Court of New South Wales, Equity Division, Commercial List / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the plaintiffs were entitled to judgment against the estate for interest accrued before termination of the Loan Agreement and damages for loss of bargain.' "Whether the transfer of Walter Perdacher's interest in Lot 153 on Registered Plan 144770 to Marie Perdacher was made with intent to defraud creditors under s 228 of the Property Law Act 1974 (Qld)." "Whether relief under s 228 would be of utility given the former joint tenancy and Walter Perdacher's death." 'Whether Marie Perdacher established that the interest was conveyed for valuable consideration and in good faith without notice of an intent to defraud creditors under s 228(3) of the Property Law Act 1974 (Qld).']

Ratio Decidendi

The plaintiffs proved the Loan Agreement, Walter Perdacher's default and the plaintiffs' termination, entitling them to judgment against the estate for accrued interest and loss of bargain damages. The transfer of Walter's interest in the Property to Marie Perdacher occurred when he was heavily indebted, in default, aware of imminent proceedings, and for no valuable consideration on the face of the instrument; it placed a real asset beyond creditors' reach and no credible non-fraudulent motivation or valuable consideration was established. The transfer severed the joint tenancy, and the Court could make orders transferring an undivided one half share to the estate as tenant in common...

Court Disposition

Judgment for the plaintiffs against the first defendant in the amount of $3,536,846.04 to be adjusted to bring the amount up to date; transfer of Lot 153 on Registered Plan 144770 set aside and second defendant required to sign documents to transfer an undivided one half share to the estate of Walter Perdacher as...

Orders

  • ['Judgment for the plaintiffs against the first defendant in the amount of $3,536,846.04 adjusted to bring the amount up to date.' 'The transfer of Lot 153 on Registered Plan 144770 with registered dealing number 709 266 213 in the Queensland Land Registry is to be set aside.' 'The second defendant is to sign all...