Farrell v Gray - [2009] NSWSC 1297

CITATION: Farrell v Gray [2009] NSWSC 1297

HEARING DATE(S): 3 October 2008, 11 and 25 November 2008, 16 July 2009 and 13 November 2009

JUDGMENT DATE :
30 November 2009

JUDGMENT OF: Smart AJ

DECISION: Judgment for Plaintiff, including interest
Order for costs
No Order made on s 37A Conveyancing Act claim
First Defendant adjudged guilty of contempt of court
Motion against Second Defendant for contempt of court dismissed
See paragraph 87 for detailed orders.

CATCHWORDS: Entitlement to costs orders against first defendant to partnership proceedings - s37A Conveyancing Act claim - intent to defraud by first defendant, first and second defendants acting together - subsequent mortgages registered not vulnerable to attack - inability to grant useful relief - case not adequately pleaded - contempt of court established as against first defendant but not second defendant

LEGISLATION CITED: Civil Procedure Act 2005
Conveyancing Act 1919
Real Property Act 1900
Supreme Court Act 1970
Uniform Civil Procedure Rules

CATEGORY: Principal judgment

CASES CITED: Bartels v Behm & Anor (1990) 19 NSWLR 257
Behm v Bartels (1988) 14 NSWLR 432
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
O'Halloran v RT Thomas & Family Pty Ltd (1998) 45 NSWLR 262
Pheeney v Doolan (1977) 1 NSWLR 601
Silvera v Savic (1999) 46 NSWLR 124
Target Holdings Ltd v Redferns [1996] 1 AC 421

PARTIES: Gavin Edward Farrell (Plaintiff)
Andrew Richard Hewell Gray (First Defendant)
Melanie Maree Gray (Second Defendant)

FILE NUMBER(S): SC 2999/04

COUNSEL: N Obrart (Plaintiff)
CM Lawrence (Defendants - 11 November 2008 only)
Exparte otherwise

SOLICITORS: Kenny Spring (Plaintiff)
Garvins (Defendants - 3 October 2008 and 11 November 2008 only)
Exparte otherwise

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Smart AJ

Monday 30 November 2009

2999/04 Gavin Edward Farrell v Andrew Richard Hewell Gray and Melanie Maree Gray (neé Eldridge) – (No 3)

JUDGMENT

1 This judgment should be read with my judgments of 26 September 2008 and 13 November 2009.

2 On 26 September 2008 I determined that Mr Gray was indebted to Mr Farrell in the sum of $62,754.00, being the balance due consequent upon a partnership between them and its dissolution. It remains to deal with the question of interest and costs.

3 The third matter is Mr Farrell’s claim under s 37A of the Conveyancing Act 1919 in respect of a voluntary transfer of 72 Morrissett Street Bathurst from Mr Gray to Mrs Gray (then Ms Eldridge). The fourth matter is a motion to deal with Mr Gray for contempt in not obeying an order of this Court made on 10 February 2006. The fifth matter is a motion to deal with Mrs Gray for contempt of court for not obeying an order of this Court of 2 November 2004 as subsequently extended (on 9 February 2007).

Procedural matters

4 On 11 November 2008 the plaintiff and the defendants were each legally represented. On that day the plaintiff read the affidavits of the plaintiff of 18 May 2004 and 8 September…

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.

Continue reading Farrell v Gray

Details

AGLC: Farrell v Gray [2009] NSWSC 1297
Case: [2009] NSWSC 1297
Decision Date: 30 November 2009

CaseChat Overview and Summary

In the matter of Farrell v Gray, the court considered the entitlement of costs orders against the first defendant in partnership proceedings. The case involved a claim under section 37A of the Conveyancing Act, which pertains to intent to defraud. The first and second defendants were alleged to have acted together, with subsequent mortgages registered by the first defendant not being vulnerable to attack. The court found that there was an inability to grant useful relief due to the case not being adequately pleaded. Additionally, contempt of court was established against the first defendant but not the second defendant.

The legal issues before the court were multifaceted. It needed to determine whether the first defendant was entitled to costs orders against the first defendant in the partnership proceedings. This involved assessing the intent to defraud claim under section 37A of the Conveyancing Act, as well as the actions of both defendants. The court had to consider whether the subsequent mortgages registered by the first defendant were vulnerable to attack and whether any useful relief could be granted given the case's pleading. Finally, the court needed to establish whether contempt of court was applicable to either or both of the defendants.

The court found that the first defendant was not entitled to costs orders against the first defendant in the partnership proceedings. It held that the intent to defraud claim under section 37A of the Conveyancing Act was not substantiated, and the subsequent mortgages registered by the first defendant were not vulnerable to attack. The court also found that the case was not adequately pleaded, which precluded the granting of useful relief. Furthermore, the court established contempt of court against the first defendant but not the second defendant. This decision highlighted the importance of proper pleading and the specific application of contempt of court in partnership proceedings.

Orders