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First Industry Corp v Goh

First Industry Corp v Goh

Case [2002] WASC 111 14 May 2002

Fiduciary Duty

Breach of Contract

Alienation of Property

Intent to Defeat Creditors

Voidable Transactions

Tracing of Property

Property Law

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FIRST INDUSTRY CORP -v- GOH & ORS [2002] WASC 111

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 111
Case No:	CIV:1302/2002	Heard:	5 & 16 APRIL 2002
Coram:	PULLIN J	Delivered:	14/05/02
No of pages:	17	Judgment Part:	1 of 1
Result:	Interlocutory injunction decreed
Category:	A
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Parties:	FIRST INDUSTRY CORP BEAN SAN GOH PATRICIA AI-TUAN GOH WESTPAC BANKING CORPORATION EVERWISE PTY LTD (ACN 084 820 664) AS TRUSTEE FOR THE TAT FAMILY TRUST
Catchwords:	Real property Alienation of property with intent to defeat creditors Whether transferor had intent Whether interlocutory injunction should be granted restraining transferee from dealing with property
Legislation:	Property Law Act 1969 (WA), s 89
Case References:	Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 76 ALJR 1 Barton v Deputy Federal Commissioner of Taxation (1974) 131 CLR 370 Boscawen v Bajwa [1996] 1 WLR 328 Brady v Stapleton (1952) 88 CLR 322 Cannane v J Cannane Pty Ltd (in liq) (1998) 192 CLR 557 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Electrical Enterprises Retail Pty Ltd v Rodgers (1989) 15 NSWLR 473 First Industry Corp v Goh & Anor [2002] WASC 68 In re Mouat, Kingston Cotton Mills Company v Mouat [1899] 1 Ch 831 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 Langdon v Gruber [2001] NSWSC 276 Motor Auctions Pty Ltd v John Joyce Wholesale Cars Pty Ltd (1997) 8 BPR [97661] Official Trustee in Bankruptcy v Alvaro (1996) 138 ALR 341 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 Perth Mint v Mickelberg (No 2) [1985] WAR 117 PT Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515 Richardson v Trautwein (1944) 14 ABC 61 Williams v Lloyd (1934) 50 CLR 341 Adamson v Hayes (1973) 130 CLR 276 Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249 Allen & Ors v Jambo Holdings Ltd & Ors [1980] 1 WLR 1252 Corin v Patton (1990) 169 CLR 540 Custom Credit Corporation Ltd v Whitehall Holdings Pty Limited & Ors, SCt of WA; unreported Library No 920231; 7 April 1992 Frigo v Culhaci [1998] NSWSC 393 Harman Pictures NV v Osborne & Ors [1967] 1 WLR 723 In re Windle [1975] 1 WLR 1628 Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1993] AC 227 Third Chandris Shipping Corporation v Unimarine SA [1979] 1 QB 645 Walker v Nicolay (1991) 4 ACSR 309 Z Ltd v A & Ors [1982] 1 All ER 556

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : FIRST INDUSTRY CORP -v- GOH & ORS [2002] WASC 111 CORAM : PULLIN J HEARD : 5 & 16 APRIL 2002 DELIVERED : 14 MAY 2002 FILE NO/S : CIV 1302 of 2002 BETWEEN : FIRST INDUSTRY CORP

Plaintiff

AND

BEAN SAN GOH

First Defendant

PATRICIA AI-TUAN GOH

Second Defendant

WESTPAC BANKING CORPORATION

Third Defendant

EVERWISE PTY LTD (ACN…

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

AGLC: First Industry Corp v Goh [2002] WASC 111
Case: [2002] WASC 111
Decision Date

CaseChat Overview and Summary

First Industry Corp sought either a mareva or an interlocutory injunction against the second defendant, Patricia Ai-Tuan Goh, and the fourth defendant, Everwise Pty Ltd, to restrain them from disposing of certain assets of the first defendant, Bean San Goh. The plaintiff alleged that the first defendant had transferred property to his wife with the intention of defeating his creditors. The plaintiff further sought an injunction to restrain the second defendant from dealing with assets up to a value of $183,072.00. The court had to determine whether the plaintiff had made out a case for relief against the second and fourth defendants. The court noted that the plaintiff had failed to show that the second defendant intended to dissipate assets, and therefore dismissed the claim for a mareva order against her. The court found that there was no evidence to support the claim for an injunction against the fourth defendant either. Regarding the Allenby Road property, the court held that there was a serious question to be tried about whether the transfer was made with the intention to defraud creditors. The court granted an injunction to restrain the second defendant from dealing with more than a half-share in the Allenby Road property. The court dismissed the plaintiff's application in all other respects.

Orders