Poulos v Eberstaller [2013] NSWSC 1849

Poulos v Eberstaller [2013] NSWSC 1849

The first defendant was subject to an implied obligation to act reasonably and co-operatively to facilitate the wife's benefit under the consent order. His obstructive behaviour was the real cause of default, invalidating his attempt to trigger a sale under Order 11 and rendering the sale to the second defendant voidable under s 37A of the Conveyancing Act. The plaintiff was entitled to the property transfer and costs.

Jurisdiction
Australia
Judgment Date
12 December 2013
Procedural Posture
Equity Division Proceedings to Enforce Consent Orders and Set Aside Conveyance / Principal Judgment After Interlocutory Injunction
Outcome
For the plaintiff
Legal Topics
['consent Orders' 'implied Terms' 'statutory Construction' 'fraudulent Conveyance' 'costs Orders']
['equity' 'contract' 'property Law' 'family Law'] ['consent Orders' 'implied Terms' 'statutory Construction' 'fraudulent Conveyance' 'costs Orders']

Case Brief

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Procedural Posture

Equity Division Proceedings to Enforce Consent Orders and Set Aside Conveyance / Principal Judgment After Interlocutory Injunction

Legal Issues

  1. 1 ['Whether the first defendant breached an implied obligation of reasonable co-operation in the performance of consent orders' "Whether the purported sale of property was voidable under s 37A Conveyancing Act 1919 (NSW) as an attempt to hinder, delay or defeat the plaintiff's equitable rights" "Whether the second defendant's transaction was bona fide" 'Whether the husband could rely on his own obstructive conduct to trigger a sale under Order 11' 'Whether the circumstances justified a lump sum costs order']

Ratio Decidendi

The first defendant was subject to an implied obligation to act reasonably and co-operatively to facilitate the wife's benefit under the consent order. His obstructive behaviour was the real cause of default, invalidating his attempt to trigger a sale under Order 11 and rendering the sale to the second defendant voidable under s 37A of the Conveyancing Act. The plaintiff was entitled to the property transfer and costs.

Court Disposition

For the plaintiff

Orders

  • ['Set aside the contract for sale of land dated 12 August 2013 between the first defendant and second defendant' "First defendant to deliver to the plaintiff's solicitors a duly executed transfer of the property at 10 Kulgoa Road, Bellevue Hill" 'First defendant to deliver the transfer by 10am, 13 December 2013'...