Cantrell & North and Anor

In the case of Cantrell & North and Anor, the respondents appealed against orders made by the Supreme Court of New South Wales, which had nullified transfers of property from the husband to the wife and set aside consent orders for property settlement made in the Family Court of Australia. These actions were undertaken to prevent the first respondent from enforcing a debt owed by the husband. The court had determined that the property transfers were void under section 37A of the Conveyancing Act 1919 (NSW) and that the consent orders should be set aside. The court ordered the property to be sold to satisfy the debt owed to the first respondent. The appeal focused on whether the primary judge should have made an order under section 67ZA of the Family Law Act 1975 (Cth) and the appropriateness of setting aside the consent orders due to the failure to disclose and notify the first respondent as a creditor.

The legal issues before the court involved the validity of the primary judge's decision to set aside the property settlement consent orders and the failure to disclose and notify the first respondent as a creditor. The court examined whether the primary judge should have exercised his discretion to make an order under section 67ZA, which allows the court to make available any property or income of a party to satisfy debts. Additionally, the court considered whether the failure to disclose and notify the first respondent as a creditor justified setting aside the consent orders. The appeal also questioned whether the primary judge erred in prioritising the husband's debts over the division of property between the husband and the wife, and whether there were any grounds for an adjustment based on contributions and section 75(2) considerations.

The court found that the primary judge did not err in setting aside the consent orders due to the failure to disclose and notify the first respondent as a creditor. The court held that the magnitude of the failure warranted the setting aside of the orders. Regarding the priority of the husband's debts, the court upheld the primary judge's decision that the husband's debts should be paid before the property was divided. The court reasoned that any adjustment based on contributions and section 75(2) considerations could not improve the wife's position as against the husband, as she was to receive 100 per cent of the net assets in Australia. Furthermore, the court determined that seeking recovery of the debt overseas from the husband would impose another miscarriage of justice upon the first respondent. Consequently, the appeals were dismissed, and the orders made on 23 July 2019 were discharged. Any party seeking an order regarding costs was directed to file and serve written submissions on the issue of costs within a specified timeframe.