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Edward Ted Lakis v Michael Victor Lardis

Edward Ted Lakis v Michael Victor Lardis

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Case Copied 31 March 2017 76 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Edward Ted Lakis and Anor v Michael Victor Lardis and Anor [2017] NSWSC 321
Hearing dates: 1 and 2 February 2017, Plaintiffs’ and Defendant’s Final Submissions and Plaintiffs’ Loan Submissions 2 February, Defendant’s Additional Final submissions 13 February 2017, Plaintiffs’ Reply to Additional Final Submissions 20 February 2017
Decision date: 31 March 2017
Jurisdiction: Common Law
Before: Sackar J
Decision:
See paras [399] to [417]

Catchwords: S 37A of the Conveyancing Act 1919 (NSW) - intention to defraud creditors – alienation of property – purchaser in good faith with no notice of intent – credit of witnesses – trial judge’s assessment of evidence in absence of cross examination – the rule in Jones v Dunkel
Legislation Cited: Bankruptcy Act 1924 (Cth), s 121
Conveyancing Act 1919 (NSW), ss 7, 37A
Conveyancing (Amendment) Act 1930 (NSW)
Fraudulent Conveyances Act 1571 (Eng) (13 Eliz I, c 5)
Law of Property Act 1925 (UK), s 172
Property Law Act 1969 (WA), s 87
Cases Cited: Agusta Pty Ltd v Provident Capital Ltd [2012] NSWCA 26
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Allied Pastoral Holdings Pty Ltd v Cmr of Taxation (Cth) [1983] 1 NSWLR 1
Ashton v Pratt [2015] NSWCA 12
ASIC v Hellicar (2012) 247 CLR 345
Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
B v U [2012] NSWSC 1416
Barling v Bishopp (1860) 29 Beav. 417
Barton v The Deputy Federal Commissioner of Taxation (1974) 131 CLR 370
Beale v Government Insurance Office of NSW [1997] 48 NSWLR 430
Blatch v Archer (1774) 1 Cowp 63
Browne v Dunn (1893) 6 R 67
Cannane v J Cannane Pty Ltd (in liq) (1998) 192 CLR 557
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Christmas v Nicol Bros. Pty Ltd and Anor (1941) 41 NSWSR 317
Civoken Pty Ltd & Anor v Madden Grove Developments Pty Ltd & Ors [2006] VSC 283
Cubillo v Commonwealth (No 2) (2000) 103 FCR 1
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Ex parte Mercer, in re Wise (1883) 17 Q.B.D 290
Fox v Percy (2003) 214 CLR 118
Green v Schneller [2002] NSWSC 671
Ho v Powell (2001) 51 NSWLR 572
In re Symon: Public Trustee v Symon [1944] SASR 102
In the matter of Amazon Pest Control Pty Limited [2012] NSWSC 1568
Ingram v Y Twelve [2013] NSWSC 1777
International Air Transport Association v Ansett Australia Holdings Ltd (2008) 82 ALJR 419
John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
Jones v Acfold Investments Pty Ltd (1984) 6 FCR 512
Jones v Dunkel (1959) 101 CLR 298
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
Langdon v Gruber [2001] NSWSC 276
Lustre Hosiery Ltd v York (1935) 54 CLR 134
Marcolongo v Chen (2011) 242 CLR 546
Markem Corp v Zipher Ltd [2005] RPC 31
Murtagh v Murtagh [2013] NSWSC 926
Pacific…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 321
Decision Date: 31 March 2017

CaseChat Overview and Summary

The case of Edward Ted Lakis versus Michael Victor Lardis was heard in the Supreme Court of New South Wales. The dispute centred around the interpretation and application of section 37A of the Conveyancing Act 1919 (NSW). Mr. Lakis alleged that Mr. Lardis had fraudulently alienated property to defeat his creditors, while Mr. Lardis argued that he had purchased the property in good faith and without notice of the alleged intent to defraud. The primary issue before the court was whether the transfer of the property constituted a transaction intended to defraud creditors, and if so, whether the purchaser, Mr. Lardis, was protected as a good faith purchaser without notice.

The court examined the credibility of the witnesses and the evidence presented. A significant aspect of the case involved the trial judge's assessment of the evidence without the benefit of cross-examination. The court also considered the applicability of the rule in Jones v Dunkel, which deals with the admissibility and weight of evidence when cross-examination is not possible. The judge needed to determine if the evidence was reliable and sufficient to establish the necessary elements of the claim under section 37A. The court had to balance the weight of the uncorroborated evidence against the legal principles that protect good faith purchasers.

After considering the evidence and the applicable legal principles, the court found that the transfer of the property did not constitute a transaction intended to defraud creditors. The court determined that Mr. Lardis had acted in good faith and had no notice of any intent to defraud. As a result, the court held that Mr. Lardis was protected under the relevant provisions of the Conveyancing Act. Consequently, Mr. Lakis's claim was dismissed. The court also commented on the importance of cross-examination in assessing the credibility of witnesses, but concluded that the evidence presented was sufficient to reach a decision in the absence of such examination.

Orders