Turnbull v Gorgievski [2000] NSWSC 365

Turnbull v Gorgievski [2000] NSWSC 365

The son and mother established that the presumption of advancement was rebutted: the parents paid the purchase price and mortgage repayments and intended that the son would not take a beneficial interest but would be on title only to assist with the bank loan. Because the son held only legal title and the 1995 transfer made the legal title match the equitable title, the Court did not find that he transferred the property with the intention required by s 37A of the Conveyancing Act 1919.

Jurisdiction
Australia
Judgment Date
08 May 2000
Procedural Posture
Proceedings for an Order Setting Aside a Transfer of Real Property Pursuant to S 37 a of the Conveyancing Act 1919 as Made With Intention of Defrauding Creditors / Judgment After Hearing
Outcome
Plaintiff's claim to set aside the transfer of interest in the house property fails.
Legal Topics
['fraudulent Disposition of Property' 'conveyancing Act 1919 S 37 A' 'proof of Intention to Defraud Creditors' 'presumption of Advancement' 'resulting Trust' 'beneficial Interest in Real Property']
['bankruptcy' 'equity' 'property Law' 'trusts'] ['fraudulent Disposition of Property' 'conveyancing Act 1919 S 37 A' 'proof of Intention to Defraud Creditors' 'presumption of Advancement' 'resulting Trust' 'beneficial Interest in Real Property']

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Procedural Posture

Proceedings for an Order Setting Aside a Transfer of Real Property Pursuant to S 37 a of the Conveyancing Act 1919 as Made With Intention of Defrauding Creditors / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the transfer by Dobra Gorgievski and Ristana Gorgievski as joint tenants to Ristana Gorgievski alone was made with the intention of defrauding creditors under s 37A of the Conveyancing Act 1919.' 'Whether Dobra Gorgievski had any beneficial interest in the property despite being registered on title.' 'Whether the presumption of advancement arising from parents providing purchase money and taking title in the name of a child was rebutted by the evidence.']

Ratio Decidendi

The son and mother established that the presumption of advancement was rebutted: the parents paid the purchase price and mortgage repayments and intended that the son would not take a beneficial interest but would be on title only to assist with the bank loan. Because the son held only legal title and the 1995 transfer made the legal title match the equitable title, the Court did not find that he transferred the property with the intention required by s 37A of the Conveyancing Act 1919.

Court Disposition

Plaintiff's claim to set aside the transfer of interest in the house property fails.

Orders

  • ["The plaintiff's claim fails."]