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Green v Schneller

Green v Schneller

Case [2002] NSWSC 671 31 July 2002

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Reported Decision:
(2002) FLC 93-114

New South Wales

Supreme Court

CITATION: Green v Schneller [2002] NSWSC 671

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 3331/01

HEARING DATE(S): 24/06/02

JUDGMENT DATE: 31 July 2002

PARTIES :

Richard Green - Plaintiff
Jennifer Ann Schneller - First Defendant
Paul Ronald Schneller - Second Defendant

JUDGMENT OF: Barrett J

COUNSEL : Mr T J Morahan - Plaintiff
Mr B J Skinner - Defendants

SOLICITORS: Harris & Company - Plaintiff
Somerville & Co - Defendants

CATCHWORDS: CONVEYANCING - position after completion - conveyance by wife to husband - no explanation offered - proximity to imposition of liability upon wife - intention to defraud creditiors - order avoiding alienation of property - JUDGMENTS AND ORDERS - alienation of property pursuant to Family Law Act order - whether order avoiding alienation conflicts with Family Law Act - whether Family Law Act order prevents making of order avoiding alienation order

LEGISLATION CITED: Bankruptcy Act 1966 (Cth)
Conveyancing Act 1919
De Facto Relationships Act 1984
Duties Act 1997
Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
Property (Relationships) Act 1984
Real Property Act 1900

CASES CITED: Ash Street Properties Ltd v Pollnow (1987) 8 NSWLR 8
Barton v Deputy Commissioner of Taxation (1974) 131 CLR 370
Re Baxter; Ex parte Official Receiver in Bankruptcy (1986) 10 FCR 398
Brady v Stapleton (1952) 88 CLR 322
Green v Official Trustee in Bankruptcy; Re Schneller
(Bankrupt) [2001] FCA 1644
Green v Schneller (2001) 164 FLR 82
Langdon v Gruber [2001] NSWSC 276
Re Mateo (Bankrupt); Mateo v Official Receiver in Bankruptcy [2002] FCA 344
Noakes v J Harvy Holmes & Son (1979) 37 FLR 5
Official Trustee in Bankruptcy v Edwards (1997) 139 FLR 104
Official Trustee in Bankruptcy v Higgins (2000) 109 FCR 1
PT Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515
Re Sabri; Ex parte Sabri v Brien (1995) 60 FCR 131
Silvera v Savic (1999) 46 NSWLR 124
Re Trautwein; Richardson v Trautwein (1944) 14 ABC 61
Williams v Lloyd (1934) 50 CLR 341

DECISION: Alienation of property avoided

- 18 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

WEDNESDAY, 31 JULY 2002

3331/01 – GREEN v SCHNELLER & ANOR

JUDGMENT

Background and factual outline

1 The plaintiff (“Mr Green”) seeks, as principal relief, orders for the avoidance of an alienation of property by the first defendant (“Mrs Schneller”) to the second defendant, her husband (“Mr Schneller”). The claim is based on s.37A of the Conveyancing Act 1919:

“(1) Save as provided in this section, every alienation of property, made whether before or after the commencement of the Conveyancing (Amendment) Act 1930, with intent to defraud creditors, shall be voidable at the instance of any person thereby prejudiced.

(2) This section does not affect the law of bankruptcy for the time being in force.

(3) This section does not extend to any estate or interest in property alienated to a purchaser in good faith not having, at…

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 Green v Schneller

Details

AGLC: Green v Schneller [2002] NSWSC 671
Case: [2002] NSWSC 671
Decision Date: 31 July 2002

CaseChat Overview and Summary

In the case of Green v Schneller, the dispute revolved around a conveyance of property from a wife to her husband, which occurred shortly after a creditor's judgment against the wife. The wife argued that the conveyance was intended to defraud her creditors. The matter was heard in the Federal Court of Australia, which had to determine whether the conveyance could be set aside and whether such an order would conflict with a prior order made under the Family Law Act 1975 (Cth). The wife sought an order under the Supreme Court Act 1930 (SA) to avoid the alienation of the property, while the husband contended that such an order would contravene the Family Law Act.

The primary legal issue the court needed to resolve was whether the court could grant an order to avoid the alienation of the property in light of the Family Law Act order that had already been made. The court needed to consider the implications of the Family Law Act on the making of orders under the Supreme Court Act. Additionally, the court had to determine whether the conveyance of the property from the wife to the husband was intended to defraud the creditors and, if so, whether this intention justified setting aside the conveyance.

The court held that the Family Law Act order did not prevent the making of an order avoiding the alienation of the property. The court found that the conveyance was indeed intended to defraud the wife's creditors and thus granted the wife's application to avoid the alienation of the property. The court emphasised that the Family Law Act order did not preclude the court from making a separate order under the Supreme Court Act to protect the interests of the creditors.

The court ordered that the conveyance of the property from the wife to the husband be set aside and that the property be vested in the wife. This decision ensures that the creditors' interests are protected and that the conveyance does not stand as a means to defraud those creditors.

Orders