The Owners Strata Plan 97121 v RCBS Devco Pty Ltd [2020] NSWSC 1247

The Owners Strata Plan 97121 v RCBS Devco Pty Ltd [2020] NSWSC 1247

The transfer of Lot 3 and immediate distribution of proceeds by Landco were made with intent to defraud the plaintiff as a creditor within s 37A of the Conveyancing Act 1919. The defendants' stated motivations were not believed; the objective circumstances indicated the purpose was to thwart the plaintiff's potential claim for building defects.

Parties
Plaintiff: The Owners Strata Plan 97121; First Defendant: RCBS Devco Pty Ltd; Second Defendant: RCBS Land Co. Pty Ltd; Third Defendant: Altitude G3 Pty Ltd; Fourth Defendant: R&V Cassab Pty Ltd; Fifth Defendant: RC Family Holdings Pty Ltd; Sixth Defendant: MJEC Investments Pty Ltd; Seventh Defendant: Suttor Innovation Pty Limited; Eighth Defendant: ESS Asset Pty Ltd
Jurisdiction
Australia
Judgment Date
14 September 2020
Procedural Posture
Principal Judgment / Judgment on Separate Questions Regarding Alienation of Property
Outcome
Plaintiff succeeded on separate questions; transactions found to have intent to defraud creditors. Form of relief and orders for costs reserved pending further submissions.
Legal Topics
Voluntary Alienation to Defraud Creditors, Conveyancing Act S 37 a, Building Defects, Home Building Act Warranties
Real Property Equity Voluntary Alienation to Defraud Creditors Conveyancing Act S 37 a Building Defects Home Building Act Warranties

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Parties

The Owners Strata Plan 97121

Plaintiff

RCBS Devco Pty Ltd

First Defendant

RCBS Land Co. Pty Ltd

Second Defendant

Altitude G3 Pty Ltd

Third Defendant

R&V Cassab Pty Ltd

Fourth Defendant

RC Family Holdings Pty Ltd

Fifth Defendant

MJEC Investments Pty Ltd

Sixth Defendant

Suttor Innovation Pty Limited

Seventh Defendant

ESS Asset Pty Ltd

Eighth Defendant

Procedural Posture

Principal Judgment / Judgment on Separate Questions Regarding Alienation of Property

Legal Issues

  1. 1 Whether the transfer of Lot 3 and distribution of proceeds by the Second Defendant was made with intent to defraud creditors under s 37A of the Conveyancing Act 1919 (NSW)
  2. 2 Whether the sale was at an undervalue
  3. 3 Appropriate relief under s 37A

Ratio Decidendi

The transfer of Lot 3 and immediate distribution of proceeds by Landco were made with intent to defraud the plaintiff as a creditor within s 37A of the Conveyancing Act 1919. The defendants' stated motivations were not believed; the objective circumstances indicated the purpose was to thwart the plaintiff's potential claim for building defects.

Court Disposition

Plaintiff succeeded on separate questions; transactions found to have intent to defraud creditors. Form of relief and orders for costs reserved pending further submissions.

Orders

  • The transfer of Lot 3 to Altitude G3 Pty Ltd and the distributions to the Fourth to Eighth Defendants were made with intent to defraud creditors within s 37A of the Conveyancing Act 1919 (NSW)
  • Appropriate form of relief and costs to be determined following written submissions by parties within 14 days