Saba v Plumb [2018] NSWCA 60

Saba v Plumb [2018] NSWCA 60

The appeal failed because Mr Saba did not establish error in the primary judge's finding that Mr Plumb lacked the intent required by s 37A of the Conveyancing Act 1919 (NSW). In particular, Mr Saba did not prove that Mr Plumb knew or believed that his superannuation would be unavailable to satisfy any future costs judgment, and it was open to find that the transfer was part of a genuine Family Court property settlement driven by the breakdown of the respondents' relationship and Ms Minifie's desire to secure the property for her daughter. Even if fraudulent intent had been established, the primary judge was correct to find that Ms Minifie was a purchaser for valuable consideration and had...

Jurisdiction
Australia
Judgment Date
28 March 2018
Procedural Posture
Appeal From Supreme Court of New South Wales, Equity – Real Property List / Court of Appeal Decision
Outcome
Appeal dismissed with costs.
Legal Topics
['alienation of Property to Defraud Creditors' 'section 37 a of the Conveyancing Act 1919 (nsw)' 'property Settlement by Family Court Consent Orders' 'purchaser in Good Faith Without Notice' 'adverse Costs Orders' 'credit Based Findings on Appeal']
['land Law' 'property Law' 'equity' 'civil Procedure' 'family Law'] ['alienation of Property to Defraud Creditors' 'section 37 a of the Conveyancing Act 1919 (nsw)' 'property Settlement by Family Court Consent Orders' 'purchaser in Good Faith Without Notice' 'adverse Costs Orders' 'credit Based Findings on Appeal']

Case Brief

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Procedural Posture

Appeal From Supreme Court of New South Wales, Equity – Real Property List / Court of Appeal Decision

Legal Issues

  1. 1 ['Whether Mr Plumb transferred his interest in the East Ryde property with intent to defraud Mr Saba as a future creditor within s 37A of the Conveyancing Act 1919 (NSW).' 'Whether the primary judge erred in finding that Mr Saba did not establish that Mr Plumb knew his superannuation funds would not be available to meet a future costs judgment.' 'Whether the property transfer was driven by a genuine relationship breakdown and property settlement rather than an intent to hinder or defeat Mr Saba.' 'Whether Ms Minifie was a purchaser for valuable consideration within s 37A(3) of the Conveyancing Act 1919 (NSW).' "Whether Ms Minifie had notice of Mr Plumb's alleged intent to defraud creditors."]

Ratio Decidendi

The appeal failed because Mr Saba did not establish error in the primary judge's finding that Mr Plumb lacked the intent required by s 37A of the Conveyancing Act 1919 (NSW). In particular, Mr Saba did not prove that Mr Plumb knew or believed that his superannuation would be unavailable to satisfy any future costs judgment, and it was open to find that the transfer was part of a genuine Family Court property settlement driven by the breakdown of the respondents' relationship and Ms Minifie's desire to secure the property for her daughter. Even if fraudulent intent had been established, the primary judge was correct to find that Ms Minifie was a purchaser for valuable consideration and had...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']