Griffiths v Falck [2008] NSWSC 998

Griffiths v Falck [2008] NSWSC 998

The appeal failed because the transfers remained effective throughout the bankruptcy unless and until avoided. At the commencement of and during the bankruptcy the relevant property was vested in persons other than Mr Chitty, and any later avoidance after discharge would not make the property available to benefit the appellant through the bankruptcy. The appellant was therefore not a person prejudiced within s 37A of the Conveyancing Act 1919. Further, the Trustee in Bankruptcy's caveat was only an assertion of a claim under ss 120 and 121 of the Bankruptcy Act 1966 (Cth), not execution, legal proceedings, or other enforcement sufficient to avoid the transfers under s 37A. The proceedings...

Jurisdiction
Australia
Judgment Date
25 September 2008
Procedural Posture
Appeal / Appeal From Associate Justice Macready's Summary Dismissal of the Proceedings
Outcome
Appeal dismissed with costs.
Legal Topics
['fraudulent Alienation of Property Under S 37 a of the Conveyancing Act 1919' 'whether Judgment Creditor Was a Person Prejudiced by Alienation' 'effect of Bankruptcy and Discharge on Property Available to Creditors' 'whether Lodging a Caveat Constituted an Election to Avoid a Transaction' 'admission of Further Evidence on Appeal' 'summary Dismissal']
['conveyancing' 'bankruptcy' 'civil Procedure'] ['fraudulent Alienation of Property Under S 37 a of the Conveyancing Act 1919' 'whether Judgment Creditor Was a Person Prejudiced by Alienation' 'effect of Bankruptcy and Discharge on Property Available to Creditors' 'whether Lodging a Caveat Constituted an Election to Avoid a Transaction' 'admission of Further Evidence on Appeal' 'summary Dismissal']

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Procedural Posture

Appeal / Appeal From Associate Justice Macready's Summary Dismissal of the Proceedings

Legal Issues

  1. 1 ['Whether the appellant was a person prejudiced within the meaning of s 37A of the Conveyancing Act 1919 after the judgment debtor had been discharged from bankruptcy.' 'Whether the transferred interests in the Como property vested in the Trustee in Bankruptcy under ss 58 and 116 of the Bankruptcy Act 1966 (Cth).' "Whether the Trustee in Bankruptcy's caveat asserting voidness under ss 120 and 121 of the Bankruptcy Act 1966 (Cth) was sufficient to trigger avoidance under s 37A of the Conveyancing Act 1919." "Whether further evidence, including the appellant's affidavit referring to the caveat, should be admitted on the appeal." 'Whether the proceedings were properly summarily dismissed.']

Ratio Decidendi

The appeal failed because the transfers remained effective throughout the bankruptcy unless and until avoided. At the commencement of and during the bankruptcy the relevant property was vested in persons other than Mr Chitty, and any later avoidance after discharge would not make the property available to benefit the appellant through the bankruptcy. The appellant was therefore not a person prejudiced within s 37A of the Conveyancing Act 1919. Further, the Trustee in Bankruptcy's caveat was only an assertion of a claim under ss 120 and 121 of the Bankruptcy Act 1966 (Cth), not execution, legal proceedings, or other enforcement sufficient to avoid the transfers under s 37A. The proceedings...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal is dismissed with costs.']