Bowden v Weldon [2014] NSWSC 109

Bowden v Weldon [2014] NSWSC 109

The transfer was an alienation of property made with intent to defraud creditors because the transaction occurred while the plaintiff's damages claim was pending, after an undertaking not to sell had been recorded, no consideration was paid despite a stated price of $245,000, and the arrangements objectively showed an intent to place the property beyond or obstruct the plaintiff's civil remedy. The plaintiff was a creditor for s 37A purposes. Section 37A(3) did not protect the second defendant because the absence of payment, her ignorance of the contract price, and the involvement of her son-in-law, an associate of the first defendant, showed she was not a purchaser in good faith without...

Jurisdiction
Australia
Judgment Date
19 February 2014
Procedural Posture
Equity Proceedings Seeking Relief Under, and by Reference To, S 37 a of the Conveyancing Act 1919 (nsw) in Respect of a Transfer of Land / Final Hearing; Ex Tempore Principal Judgment; Second Defendant's Adjournment Application Denied
Outcome
Relief granted for the plaintiff; the transfer was declared made with intent to defraud creditors, declared void pursuant to s 37A of the Conveyancing Act 1919, and set aside.
Legal Topics
['transfer of Land' 'intent to Defraud Creditors' 'voluntary Alienation' 'voidable Transaction' 'adjournment Application' 'freezing Order']
['real Property' 'equity' 'civil Procedure'] ['transfer of Land' 'intent to Defraud Creditors' 'voluntary Alienation' 'voidable Transaction' 'adjournment Application' 'freezing Order']

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Procedural Posture

Equity Proceedings Seeking Relief Under, and by Reference To, S 37 a of the Conveyancing Act 1919 (nsw) in Respect of a Transfer of Land / Final Hearing; Ex Tempore Principal Judgment; Second Defendant's Adjournment Application Denied

Legal Issues

  1. 1 ['Whether the transfer of Lot 11 in Strata Plan 73233 from the first defendant to the second defendant was an alienation of property made with intent to defraud creditors under s 37A of the Conveyancing Act 1919 (NSW).' 'Whether the plaintiff was a creditor with standing sufficient to invoke s 37A of the Conveyancing Act 1919 (NSW).' 'Whether the second defendant was protected as a purchaser in good faith without notice of the intent to defraud creditors under s 37A(3).' "Whether the second defendant's application for an adjournment should be granted."]

Ratio Decidendi

The transfer was an alienation of property made with intent to defraud creditors because the transaction occurred while the plaintiff's damages claim was pending, after an undertaking not to sell had been recorded, no consideration was paid despite a stated price of $245,000, and the arrangements objectively showed an intent to place the property beyond or obstruct the plaintiff's civil remedy. The plaintiff was a creditor for s 37A purposes. Section 37A(3) did not protect the second defendant because the absence of payment, her ignorance of the contract price, and the involvement of her son-in-law, an associate of the first defendant, showed she was not a purchaser in good faith without...

Court Disposition

Relief granted for the plaintiff; the transfer was declared made with intent to defraud creditors, declared void pursuant to s 37A of the Conveyancing Act 1919, and set aside.

Orders

  • ['Declared that the transfer by the first defendant to the second defendant in or about August 2011, pursuant to a Memorandum of Transfer dated 11 August 2011 registered as dealing AG 436723, of the subject property was made with the intent to defraud creditors.' 'Declared that the transfer of the subject property...