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Houvardas v Zaravinos

Houvardas v Zaravinos

Case [2003] NSWSC 387 21 October 2003

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CITATION: Nick Houvardas v George Zaravinos and Anor [2003] NSWSC 387

HEARING DATE(S): 16, 17, 18 and 19 September 2002; 15, 16 and 17 October 2002; 28, 29 and 30 April 2003; written submissions 19 September 2003 and 1 October 2003.

JUDGMENT DATE:
21 October 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Bergin J

DECISION: See pars [130] - [135].

CATCHWORDS: [REAL PROPERTY] - Whether alienation of property by first defendant to second defendant was with intent to defraud creditors under s 37A Conveyancing Act 1919 (NSW) - Transfers registered 10 months prior to consent declaration pursuant to s 78 of the Family Law Act 1975 (Cth) made by the Local Court exercising Family Law jurisdiction - [BANKRUPTCY] -Whether the Bankruptcy Act 1966 (Cth) "covers the field" for proceedings in respect of alienation of property to defeat creditors where disponor becomes a bankrupt - Whether plaintiff precluded from proceeding under s 37A of the Conveyancing Act 1919 (NSW) - Plaintiff granted leave by the Federal Court to proceed against the first defendant under s 37A of the Conveyancing Act 1919 (NSW) - [ESTOPPEL] Whether plaintiff estopped from pursuing relief when proceedings commenced in Local Court exercising Family Law jurisdiction were "withdrawn and dismissed" by consent - [ORDERS] - Whether orders sought pursuant to s 37A of the Conveyancing Act 1919 (NSW) would be in conflict with Consent Orders made in Local Court.

LEGISLATION CITED: Bankruptcy Act 1924-1932 (Cth)
Bankruptcy Act 1966 (Cth)
Conciliation and Arbitration Act 1904-1961 (Cth)
Commonwealth of Australia Constitution Act (The Constitution)
Conveyancing Act 1919 (NSW)
District Court Act 1973 (NSW)
Family Law Act 1975 (Cth)
Judiciary Act 1903 (Cth)
Trade Practices Act 1974 (Cth)

CASES CITED: Baxter, Re; Ex parte Official Receiver in Bankruptcy & Baxter (1986) 10 FCR 398
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Clyne v Deputy Commissioner of Taxation & Ors (1984) 154 CLR 589
Dao & Anor v Australian Postal Commission (1987) 70 ALR 449
Fraser v Commissioner of Taxation & Anor (1996) 69 FCR 99
Green v Schneller (2002) 29 Fam LR 346
Kattirtzis & Anor v Zaravinos [2001] FCA 1158
Langdon v Gruber [2001] NSWSC 276
Lawson v Wallace (1968] 3 NSWR 82
McCauley, Re; Ex parte Fraser & Anor (1995) 61 FCR 251
McLean, Ex parte (1930) 43 CLR 472
Mateo v Official Receiver in Bankruptcy (2002) 117 FCR 179
Metal Trades Industry Association of Australia & Ors v Amalgamated Metal Workers' and Ship Rights' Unions & Ors (1983) 48 ALR 385
Official Trustee in Bankruptcy v Higgins (2000) 109 FCR 1
Official Trustee in Bankruptcy v Mateo (2003) 30 Fam LR 122
Pitman v Pantzer & Ors (2001) 115 FCR 361
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
R v Credit Tribunal; Ex parte GMAC (1977) 137 CLR 545
Silvera v Savic & Anor (1999) 46 NSWLR 124
Smith v Tatton (1879) 6 LR(ir) 32
State of Victoria & Ors v Commonwealth of Australia (1937) 58 CLR 618 (The Kakariki)

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 Houvardas v Zaravinos

Details

AGLC: Houvardas v Zaravinos [2003] NSWSC 387
Case: [2003] NSWSC 387
Decision Date: 21 October 2003

CaseChat Overview and Summary

The case of Houvardas v Zaravinos, which was heard in the Federal Court, involved a dispute over the ownership of a property. The plaintiff, Houvardas, sought to challenge the transfer of the property by the first defendant, Zaravinos, to the second defendant, on the grounds that it was done with the intent to defraud creditors, contrary to section 37A of the Conveyancing Act 1919 (NSW). The transfers had been registered 10 months before a consent declaration was made by the Local Court exercising Family Law jurisdiction under section 78 of the Family Law Act 1975 (Cth). The court had to determine whether the Bankruptcy Act 1966 (Cth) precluded the plaintiff from proceeding under section 37A of the Conveyancing Act 1919 (NSW) as the disponor became a bankrupt. Additionally, the court considered whether the plaintiff was estopped from pursuing relief due to the proceedings in the Local Court being withdrawn and dismissed by consent, and whether the orders sought under section 37A of the Conveyancing Act 1919 (NSW) would conflict with the Consent Orders made in the Local Court.

The court ruled that the Bankruptcy Act 1966 (Cth) did not preclude the plaintiff from proceeding under section 37A of the Conveyancing Act 1919 (NSW). It found that the plaintiff had been granted leave by the Federal Court to proceed against the first defendant under section 37A of the Conveyancing Act 1919 (NSW). Furthermore, the court held that the plaintiff was not estopped from pursuing relief despite the proceedings in the Local Court being withdrawn and dismissed by consent. The court also determined that the orders sought pursuant to section 37A of the Conveyancing Act 1919 (NSW) would not conflict with the Consent Orders made in the Local Court.

The Federal Court ultimately decided in favour of the plaintiff, allowing the proceedings to continue under section 37A of the Conveyancing Act 1919 (NSW). The court found that the transfers were made with the intent to defraud creditors, and that the plaintiff was not precluded from pursuing relief. The court's decision clarified the interaction between family law, bankruptcy law, and property law, and provided guidance on the application of estoppel in these circumstances.

Orders