El Zakhem v Tadros [2010] NSWSC 159

El Zakhem v Tadros [2010] NSWSC 159

George Tadros had the requisite intent to defeat and delay creditors when transferring interests in the Granville property and granting mortgages, and Joseph Tadros probably realised that George had creditors, needed a substantial sum of money, and that the transactions would adversely affect George's creditors generally, although the Court was not satisfied that Joseph knew of the plaintiff's District Court proceedings or judgment. Because George's devised interest was subject to Nazha Tadros's personal right of residence, the obligation to pay outgoings, and pecuniary legacies, the appropriate relief required valuation of that limited interest rather than transfer of the property...

Jurisdiction
Australia
Judgment Date
11 March 2010
Procedural Posture
Application Under S 37 a of the Conveyancing Act 1919 Concerning Alleged Dispositions to Defeat Creditors / Principal Judgment After Hearing; Further Inquiries and Arrangements for Medical Report and Valuation; Short Minutes of Orders to Be Settled
Outcome
Further inquiries and arrangements were directed for a medical report and valuation, with Short Minutes of Orders to be settled; the Court was not prepared to grant the relief sought by the plaintiff in its specified form.
Legal Topics
['substituted Service' 'dispensing With Service' 'alienation of Property to Defeat Creditors' 'voidable Dispositions Under S 37 a Conveyancing Act 1919' 'qualified Title' 'valuation of Devised Property Subject to Right of Residence and Conditions']
['equity' 'property Law' 'creditor Debtor Law'] ['substituted Service' 'dispensing With Service' 'alienation of Property to Defeat Creditors' 'voidable Dispositions Under S 37 a Conveyancing Act 1919' 'qualified Title' 'valuation of Devised Property Subject to Right of Residence and Conditions']

Case Brief

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Procedural Posture

Application Under S 37 a of the Conveyancing Act 1919 Concerning Alleged Dispositions to Defeat Creditors / Principal Judgment After Hearing; Further Inquiries and Arrangements for Medical Report and Valuation; Short Minutes of Orders to Be Settled

Legal Issues

  1. 1 ['Whether service on George Tadros should be dispensed with where substituted service probably did not bring the proceedings to his notice and his whereabouts were unknown.' 'Whether the transfers dated 15 November 2007 and 14 February 2008 were effected with intent to defraud creditors within s 37A of the Conveyancing Act 1919.' "Whether Joseph Tadros knew of George Tadros's intent or of the District Court proceedings and judgment obtained by the plaintiff." 'Whether the MDN and Citibank mortgages were alienations of property within s 37A of the Conveyancing Act 1919.' "How George Tadros's interest under the will should be valued given Nazha Tadros's personal right of residence, the obligation to pay outgoings, and pecuniary legacies."]

Ratio Decidendi

George Tadros had the requisite intent to defeat and delay creditors when transferring interests in the Granville property and granting mortgages, and Joseph Tadros probably realised that George had creditors, needed a substantial sum of money, and that the transactions would adversely affect George's creditors generally, although the Court was not satisfied that Joseph knew of the plaintiff's District Court proceedings or judgment. Because George's devised interest was subject to Nazha Tadros's personal right of residence, the obligation to pay outgoings, and pecuniary legacies, the appropriate relief required valuation of that limited interest rather than transfer of the property...

Court Disposition

Further inquiries and arrangements were directed for a medical report and valuation, with Short Minutes of Orders to be settled; the Court was not prepared to grant the relief sought by the plaintiff in its specified form.

Orders

  • ['The plaintiff is to serve on the defendant within fourteen days, with a copy to the Associate, draft proposed Short Minutes of Order to give effect to the judgment.' 'Within ten days thereafter the defendant is to advise of any desired amendments or serve a copy of his proposed Short Minutes of Order.' 'The matter...