Ng v Van Der Velde [2011] FCAFC 35

Ng v Van Der Velde [2011] FCAFC 35

The appeal failed because Riby's status as trustee did not remove the property or Riby's indemnity and lien from the operation of the Corporations Act. Registration of the transfer of 15 Brookvale Drive after commencement of Riby's winding up was a void disposition under s 468, and the arrangements were also open to treatment as voidable transactions under s 588FE. The Family Court consent orders did not bind Riby or the liquidators in a way that engaged Pt VIIIAA or displaced the Corporations Act, and they did not affect Riby's right of indemnity or lien. Ms Ng was not denied procedural fairness because she knew of the trial and chose not to attend. The proposed further evidence was...

Jurisdiction
Australia
Judgment Date
15 March 2011
Procedural Posture
Appeal in Corporate Insolvency Proceedings Concerning Voidable Transactions, Trust Property, Family Law Act Consent Orders and Further Evidence on Appeal / Appeal From Van Der Velde V Ng (no 3) [2009] FCA 1563; Motion for Leave to Adduce Further Evidence on Appeal
Outcome
Motion for leave to adduce further evidence on appeal dismissed; appeal dismissed; appellant ordered to pay the respondents' costs of the appeal and of the motion.
Legal Topics
['void Dispositions After Commencement of Winding Up' 'voidable Transactions' 'uncommercial Transactions' 'unreasonable Director Related Transactions' 'trustee Company in Liquidation' 'trustee Right of Indemnity and Lien Over Trust Assets' 'interaction Between Family Law Act Consent Orders and Corporations Act Voidable Transaction Provisions' 'further Evidence on Appeal' 'procedural Fairness']
['corporate Insolvency' 'trusts' 'family Law' 'evidence' 'appellate Procedure'] ['void Dispositions After Commencement of Winding Up' 'voidable Transactions' 'uncommercial Transactions' 'unreasonable Director Related Transactions' 'trustee Company in Liquidation' 'trustee Right of Indemnity and Lien Over Trust Assets' 'interaction Between Family Law Act Consent Orders and Corporations Act Voidable Transaction Provisions' 'further Evidence on Appeal' 'procedural Fairness']

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Procedural Posture

Appeal in Corporate Insolvency Proceedings Concerning Voidable Transactions, Trust Property, Family Law Act Consent Orders and Further Evidence on Appeal / Appeal From Van Der Velde V Ng (no 3) [2009] FCA 1563; Motion for Leave to Adduce Further Evidence on Appeal

Legal Issues

  1. 1 ['Whether the winding up and voidable transaction provisions of the Corporations Act 2001 (Cth) applied to property held by Riby as trustee for the Jade Trust.' 'Whether registration of the transfer of 15 Brookvale Drive to Ms Ng after the winding up order was void under s 468 of the Corporations Act 2001 (Cth).' 'Whether the agreements and transfer concerning 15 Brookvale Drive were voidable transactions under s 588FE of the Corporations Act 2001 (Cth).' 'Whether Riby had a right of indemnity and lien over trust assets notwithstanding cl 13.9 of the Jade Trust deed and allegations of breach of trust.' 'Whether the Family Court consent orders of 10 April 2006 bound Riby or the liquidators, engaged Pt VIIIAA of the Family Law Act 1975 (Cth), or displaced the Corporations Act provisions.' 'Whether Ms Ng was denied natural justice or procedural fairness by the trial proceeding in her absence.' 'Whether the Court should receive further evidence on appeal under s 30AI of the Federal Court of Australia Act 1976 (Cth).']

Ratio Decidendi

The appeal failed because Riby's status as trustee did not remove the property or Riby's indemnity and lien from the operation of the Corporations Act. Registration of the transfer of 15 Brookvale Drive after commencement of Riby's winding up was a void disposition under s 468, and the arrangements were also open to treatment as voidable transactions under s 588FE. The Family Court consent orders did not bind Riby or the liquidators in a way that engaged Pt VIIIAA or displaced the Corporations Act, and they did not affect Riby's right of indemnity or lien. Ms Ng was not denied procedural fairness because she knew of the trial and chose not to attend. The proposed further evidence was...

Court Disposition

Motion for leave to adduce further evidence on appeal dismissed; appeal dismissed; appellant ordered to pay the respondents' costs of the appeal and of the motion.

Orders

  • ['The motion for leave to adduce further evidence on appeal be dismissed.' 'The appeal be dismissed.' "The appellant pay the respondents' costs of the appeal and of the motion."]