Datacord Services Pty Ltd v Burke

[2003] VSC 342

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7548 of 2003

DATACORD SERVICES PTY LTD

Plaintiff

v

JOHN GEORGE BURKE
AND
MOIRA BURKE

First Defendant

Second Defendant

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 SEPTEMBER 2003
DATE OF RULING:	9 SEPTEMBER 2003
CASE MAY BE CITED AS:	DATACORD SERVICES PTY LTD v BURKE & ANOR
MEDIUM NEUTRAL CITATION:	[2003] VSC 342

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Ex Parte Application

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Herskope	Kalus Kenny
For the Defendants

HIS HONOUR:

1. In this matter the plaintiff seeks to set aside the transfer of an interest in land by the first defendant to his wife, the second defendant.  I am asked to grant an interim injunction which has been sought on an ex parte basis to restrain the second defendant from disposing of her interest in the land prior to the determination of the proceeding.  I am satisfied that there is a serious issue to be tried.  The firstnamed defendant has been in dispute with the plaintiff since at least March of this year and is the defendant to proceedings issued by the plaintiff on 5 September 2003 seeking damages for fundamental breach of an agreement relating to the sale of the business.  Although it is apparent from the correspondence tendered to me and exhibited to the affidavit in support of this application that the firstnamed defendant disputes the alleged breach of the sale of the business agreement, it is also clear from that material that there is a very serious issue in this regard and I accept that the plaintiff's case is founded upon an apprehension that the firstnamed defendant is substantially indebted to the plaintiff. 

1. In July or August this year the firstnamed defendant transferred to the secondnamed defendant a joint half share in their marital home for no consideration other than "his natural love and affection". I am satisfied that there is a prima facie case that such transfer and the registration consequent upon it should be set aside pursuant to s.172 of the Property Law Act 1958.

1. It is further apparent that the balance of convenience favours the granting of an interim injunction to preserve the status quo provided the plaintiff is prepared to give the usual undertaking as to damages.  Mr Herskope has proffered that undertaking to me and accordingly I propose to make orders in terms of the draft submitted to me save that I do not propose to make an order for substituted service and an order for directions as to affidavit material consequent upon such service.

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