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Griffiths v Falck

Griffiths v Falck

Case [2008] NSWSC 998 25 September 2008

Unjust Enrichment

Conveyancing Act 1919

Bankruptcy Act 1966 (Cth)

Property Law

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Reported Decision:
220 FLR 278

New South Wales

Supreme Court

CITATION: Griffiths v Falck [2008] NSWSC 998

HEARING DATE(S): 21/08/08

JUDGMENT DATE :
25 September 2008

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: The appeal is dismissed with costs.

CATCHWORDS: CONVEYANCING [269]- Judgment debtor transferred certain property to family members prior to bankruptcy- Judgment creditor seeks to set aside transaction under s 37A Conveyancing Act 1919- Application made after debtor released from bankruptcy- Whether judgment creditor is a person prejudiced by transaction- Trustee in Bankruptcy lodged caveat to protect his position under ss 120 and 121 Bankruptcy Act 1966 (Cth)- Caveat not followed up- Whether caveat sufficient to trigger avoidance under s 37A- Held "No"- Transaction only defeasible if proceedings are taken to avoid it.

LEGISLATION CITED: Bankruptcy Act 1966 (Cth) ss 58, 116, 120, 121
Conveyancing Act 1919, s 37A
Supreme Court Act 1970, s 75A

CASES CITED: Asian Investments Corporation Ltd v Symons (Young J, 10.4.1996, unreported)
Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 60 ALR 756
Brady v Stapleton (1952) 88 CLR 322
British and Beningtons Ltd v NW Cachar Tea Co [1923] AC 48
Cowan v Milbourn (1867) LR 2 Ex 230
Daemar v Industrial Commission of NSW (No 2) (1990) 22 NSWLR 178
Doe d Daniell v Woodroffe (1842) 10 M & W 608; 152 ER 614
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Georgalis v Andonaras (1993) 113 FLR 196
Harrods Ltd v Stanton [1923] 1 KB 516
Industrial Equity Ltd v Blackburn (1977) 2 ACLR 421
J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
Lockwood v Commonwealth (1954) 90 CLR 177
Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430
Morewood v South Yorkshire Railway & River Dun Co (1858) 3 H & N 798; 157 ER 690
Official Trustee in Bankruptcy v Alvaro (1996) 66 FCR 372
Re Fiorino [1994] FCA 181
Re Hitchcock (1900) 17 WN (NSW) 62
Shears v Rogers (1832) 3 B & Ad 362; 110 ER 137
Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359
Spotswood v Barrow (1850) 5 Ex 110; 155 ER 48
Sutherland v Vale [2008] NSWSC 759
Union Bank v Downes (1896) 12 WN (NSW) 131
Zaravinos v Houvardas (2004) 32 Fam LR 490

PARTIES: Stephen Griffiths (Appellant)
Inger Moreno Falck (First Respondent)
Torsten Arthur Gunnar Falck (Second Repondent)
Josefine Elsie Gunvor Falck (Third Respondent)
Matti Antero Fernonano Koskinen (Fourth Respondent)

FILE NUMBER(S): SC 4825/06

COUNSEL: M Aldridge SC and M W Sneddon (A)
J B Simpkins SC and T Thawley (R)

SOLICITORS: Worthington Williams Lawyers (A)
Nescis Lawyers (R)

LOWER COURT JURISDICTION: Supreme Court (Associate Judge)

LOWER COURT FILE NUMBER(S): 4825/06

LOWER COURT JUDICIAL OFFICER : Associate Justice Macready

LOWER COURT DATE OF DECISION: 28 November 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Stephen Griffiths v Inger Moreno Falck & ors

IN THE SUPREME COURT
OF…

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 Griffiths v Falck

Details

AGLC: Griffiths v Falck [2008] NSWSC 998
Case: [2008] NSWSC 998
Decision Date: 25 September 2008

CaseChat Overview and Summary

In the matter of Griffiths v Falck, the dispute revolves around the transfer of certain property by the judgment debtor to family members before declaring bankruptcy. The judgment creditor, seeking to set aside this transaction, lodged an application under section 37A of the Conveyancing Act 1919. This application was made after the judgment debtor had been released from bankruptcy. The central legal issues before the court were whether the judgment creditor is a person prejudiced by the transaction and whether a caveat lodged by the Trustee in Bankruptcy under sections 120 and 121 of the Bankruptcy Act 1966 (Cth) was sufficient to trigger avoidance under section 37A of the Conveyancing Act.

The court found that the judgment creditor was indeed a person prejudiced by the transaction. However, it held that the caveat lodged by the Trustee in Bankruptcy was not sufficient to trigger avoidance under section 37A of the Conveyancing Act. The court determined that a transaction is only defeasible if proceedings are taken to avoid it within the relevant time period. The mere lodging of a caveat, without further action, does not suffice to initiate the avoidance process. Therefore, the transaction remained valid unless the judgment creditor took appropriate legal action to set it aside.

Consequently, the court dismissed the application by the judgment creditor to set aside the transaction. The decision underscores the necessity for proactive legal action by creditors to challenge property transfers that may be prejudicial, rather than relying on the mere lodging of a caveat. The court’s ruling highlights the importance of timely and specific proceedings to address concerns over property transactions in the context of bankruptcy and judgment enforcement.

Orders