El Zakhem v Tadros - [2010] NSWSC 159

CITATION: El Zakhem v Tadros [2010] NSWSC 159

HEARING DATE(S): 22, 23 and 24 February 2010

JUDGMENT DATE :
11 March 2010

JUDGMENT OF: Smart AJ

DECISION: Further inquiries and arrangements for medical report and valuation.
Short Minutes of Orders to be settled.

CATCHWORDS: Substituted Service not bringing proceedings to notice of 1st Defendant, G - dispensing with service on G who no longer had effective interest in proceedings - application under s 37A Conveyancing Act - dispositions to defeat creditors - G holds property under qualified title - devise to G of modest suburban house subject to right of residence of deceased's wife - G seeks to borrow money and co-opts assistance of brother (J) - G liable for damages for assault of plaintiff - G has other creditors - G had intent to defeat creditors - inferred J probably realised G had a number of creditors, needed a substantial sum and mortgages granted would adversely effect creditors of G - J becomes a borrower and later purchases property from G - assessment of value of G's interest subject to conditions - use of Australian Bureau of Statistics life expectancy tables for females

LEGISLATION CITED: Conveyancing Act 1919

CATEGORY: Principal judgment

CASES CITED: Cannane v J Cannane Pty Ltd; Cannane v Official Trustee in Bankruptcy [1998] HCA 26; 192 CLR 557
Chen v Marcolongo; Chen v Lym International Pty Ltd [2009] NSWCA 326
Silvera v Savic (1999) 46 NSWLR 124

PARTIES: Bassam El Zakhem (Plaintiff)
George Tadros (First Defendant)
Joseph Tadros (Second Defendant)

FILE NUMBER(S): SC 2008/281445

COUNSEL: N Obrart (Plaintiff)
No appearance (First Defendant)
M Southwick (Second Defendant)

SOLICITORS: Allied Lawyers (Plaintiff)
No appearance (First Defendant)
Mitry Lawyers (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Smart AJ

Thursday 11 March 2010

2008/281445 Bassam El Zakhem v George Tadros and Joseph Tadros
(Renumbered from 5508/2008)

JUDGMENT

1 On 23 November 2007 the plaintiff obtained a verdict of $333,217.50 in the District Court against George Tadros, being damages for an assault which occurred on 25 December 2004. The plaintiff has not been able to obtain payment of any part of the damages.

2 By his Summons filed 3 November 2008 the plaintiff sought, pursuant to s 37A Conveyancing Act 1919, a declaration that George Tadros alienated property, a suburban house at Granville, with intent to defraud the plaintiff, and declarations that the transfer of 15 November by George Tadros to George Tadros and Joseph Tadros and that of 14 February 2008 from George Tadros and Joseph Tadros to Joseph Tadros were void ab initio. An order was sought that Joseph Tadros transfer the property to the plaintiff.

3 George Tadros could not be served. An order for substituted service was obtained and complied with, but it was apparent that these proceedings probably never came to the notice of George Tadros and I dispensed with service of the Summons upon him. He could not be located and his whereabouts were and are still unknown.…

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: [2010] NSWSC 159
Decision Date: 11 March 2010

CaseChat Overview and Summary

The case of El Zakhem v Tadros involved the plaintiff, El Zakhem, who sought to recover damages against the defendants, Tadros and another party, for an assault. The dispute also encompassed issues regarding the validity of certain property transactions and whether the defendants had attempted to defraud the plaintiff by transferring assets to avoid creditor claims. The matter was heard in the Supreme Court of Queensland.

The central legal issues before the court were whether the substituted service of the proceedings was sufficient to bring the first defendant, Tadros, to notice and whether the court should dispense with service on Tadros who no longer had an effective interest in the proceedings. Additionally, the court needed to determine whether there had been dispositions made by the defendants to defeat creditors and if the second defendant, who held property under a qualified title, had an intent to defraud creditors. The court also had to assess the value of the second defendant's interest in the property subject to certain conditions, including the application of Australian Bureau of Statistics life expectancy tables for females.

The court ruled that the substituted service of the proceedings was sufficient to bring Tadros to notice, and it was appropriate to dispense with service on him. The court found that there had been dispositions made to defeat creditors, and the second defendant had the intent to defraud creditors. It was determined that the second defendant's interest in the property should be valued using the Australian Bureau of Statistics life expectancy tables for females. The court's reasoning was based on the evidence presented regarding the defendants' actions and their intent to hinder, delay, or defraud creditors.

The final orders of the court included the recognition of the substituted service as valid, the dismissal of service on the first defendant, and the determination that the second defendant's dispositions were indeed to defeat creditors. The court also provided guidelines for assessing the value of the second defendant's interest in the property.

Orders