Nick Houvardas v George Zaravinos and Anor [2003] NSWSC 387

Nick Houvardas v George Zaravinos and Anor [2003] NSWSC 387

The transfers of property by the first defendant to the second defendant were made with intent to defraud creditors, including the plaintiff, within the meaning of s 37A of the Conveyancing Act 1919 (NSW); the second defendant was not a purchaser in good faith without notice. The Bankruptcy Act 1966 (Cth) does not preclude the plaintiff's action under s 37A in circumstances where the trustee declines to act and conditional leave is granted. Previous Family Law Act proceedings, dismissed by consent, did not operate as res judicata or Anshun estoppel to bar these proceedings. The orders made are not inconsistent with consent Family Law orders, as the relevant transfers predated those orders...

Parties
Plaintiff: Nick Houvardas; First Defendant: George Zaravinos; Second Defendant: Ourania Zaravinos; Intervening: NSW Attorney-General
Jurisdiction
Australia
Judgment Date
21 October 2003
Procedural Posture
Equity Proceedings Under S 37 a Conveyancing Act / Final Judgment After Trial
Outcome
Declarations and orders for reconveyance granted to plaintiff; transfers declared void under s 37A Conveyancing Act; consequential orders to set aside 1998 Family Law Act consent declaration; judgment to benefit Official Trustee in bankruptcy; costs to be determined.
Legal Topics
Fraudulent Conveyances, Intent to Defraud Creditors, Bankruptcy and Voidable Transactions, Family Law Act Property Orders, Estoppel, Conflict Between State and Federal Law
Real Property Bankruptcy Equity Fraudulent Conveyances Intent to Defraud Creditors Bankruptcy and Voidable Transactions Family Law Act Property Orders Estoppel +1 more

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Parties

Nick Houvardas

Plaintiff

George Zaravinos

First Defendant

Ourania Zaravinos

Second Defendant

NSW Attorney-General

Intervening

Procedural Posture

Equity Proceedings Under S 37 a Conveyancing Act / Final Judgment After Trial

Legal Issues

  1. 1 Whether the transfer of property by the first defendant to the second defendant was with intent to defraud creditors under s 37A Conveyancing Act 1919 (NSW)
  2. 2 Whether the Bankruptcy Act 1966 (Cth) precludes or 'covers the field' preventing relief under s 37A of the Conveyancing Act
  3. 3 Whether the plaintiff is estopped or precluded from relief due to prior Family Law proceedings or by res judicata/Anshun estoppel

Ratio Decidendi

The transfers of property by the first defendant to the second defendant were made with intent to defraud creditors, including the plaintiff, within the meaning of s 37A of the Conveyancing Act 1919 (NSW); the second defendant was not a purchaser in good faith without notice. The Bankruptcy Act 1966 (Cth) does not preclude the plaintiff's action under s 37A in circumstances where the trustee declines to act and conditional leave is granted. Previous Family Law Act proceedings, dismissed by consent, did not operate as res judicata or Anshun estoppel to bar these proceedings. The orders made are not inconsistent with consent Family Law orders, as the relevant transfers predated those orders...

Court Disposition

Declarations and orders for reconveyance granted to plaintiff; transfers declared void under s 37A Conveyancing Act; consequential orders to set aside 1998 Family Law Act consent declaration; judgment to benefit Official Trustee in bankruptcy; costs to be determined.

Orders

  • Declarations that registrations of transfers of the three properties were with intent to defraud creditors and are void under s 37A Conveyancing Act 1919 (NSW)
  • Orders that the second defendant re-transfer the half interest in Castlereagh Street, Union Road and Colson Crescent properties to the first defendant (i.e., back into the bankrupt estate)