Van Der Velde v Ng (No. 3) [2009] FCA 1563

Van Der Velde v Ng (No. 3) [2009] FCA 1563

Riby Pty Ltd was insolvent when the relevant arrangements were made and when the Underwood property was transferred to Ms Ng. The transfer was made after the commencement of the winding up, was not an exempt disposition, and was therefore void under s 468. The agreement to transfer and transfer formed part of a continuum of transactions that conferred no benefit on Riby, transferred the property to the spouse of its sole director at an undervalue, prejudiced creditors, involved a related entity and a close associate of the director, and were entered into for a purpose of removing the property from creditors' reach. The transactions were therefore voidable under ss 588FE(2), (3), (4), (5)...

Jurisdiction
Australia
Judgment Date
22 December 2009
Procedural Posture
Corporations Proceeding Concerning Voidable Transactions and Void Disposition of Company Property in Liquidation / Trial of Separate Questions; Application for Judgment Upon the Failure of the First Respondent to Appear at Trial
Outcome
Declarations and orders made in favour of the applicants against the first respondent; RAMS mortgage costs issue reserved as a separate question.
Legal Topics
['voidable Transactions' 'void Disposition After Commencement of Winding Up' 'insolvent Transactions' 'uncommercial Transactions' 'unreasonable Director Related Transactions' 'related Entity Transactions' 'separate Questions' 'failure to Appear at Trial']
['corporations' 'insolvency' 'practice and Procedure'] ['voidable Transactions' 'void Disposition After Commencement of Winding Up' 'insolvent Transactions' 'uncommercial Transactions' 'unreasonable Director Related Transactions' 'related Entity Transactions' 'separate Questions' 'failure to Appear at Trial']

Case Brief

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Procedural Posture

Corporations Proceeding Concerning Voidable Transactions and Void Disposition of Company Property in Liquidation / Trial of Separate Questions; Application for Judgment Upon the Failure of the First Respondent to Appear at Trial

Legal Issues

  1. 1 ['Whether the transfer by Riby Pty Ltd of the Underwood property to Kym Hon Yoke Ng on or about 17 May 2006 was a void disposition of property by operation of s 468 of the Corporations Act 2001 (Cth).' 'Whether the Terms of Settlement and related transfer arrangements concerning the Underwood property were voidable transactions by operation of s 588FE of the Corporations Act 2001 (Cth).' "Whether the claims against the first respondent should be determined separately from issues between the applicants and RAMS concerning construction of the RAMS mortgage and RAMS' costs." 'Whether the affidavit of the first respondent filed 10 December 2009 should be admitted although the first respondent did not appear at trial.']

Ratio Decidendi

Riby Pty Ltd was insolvent when the relevant arrangements were made and when the Underwood property was transferred to Ms Ng. The transfer was made after the commencement of the winding up, was not an exempt disposition, and was therefore void under s 468. The agreement to transfer and transfer formed part of a continuum of transactions that conferred no benefit on Riby, transferred the property to the spouse of its sole director at an undervalue, prejudiced creditors, involved a related entity and a close associate of the director, and were entered into for a purpose of removing the property from creditors' reach. The transactions were therefore voidable under ss 588FE(2), (3), (4), (5)...

Court Disposition

Declarations and orders made in favour of the applicants against the first respondent; RAMS mortgage costs issue reserved as a separate question.

Orders

  • ['The transfer by Riby Pty Ltd of the Underwood property to Kym Hon Yoke Ng on or about 17 May 2006 was declared a void disposition of property by operation of s 468 of the Corporations Act 2001 (Cth).' 'The Terms of Settlement signed between Ross Hastings and the first respondent on 3 April 2006 and attached to...