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Ingram v Y Twelve Pty Ltd

Ingram v Y Twelve Pty Ltd

Case [2013] NSWSC 1777 3 December 2013

Adverse Possession

Voidable Dispositions

Fiduciary Duty

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Ingram v Y Twelve Pty Ltd [2013] NSWSC 1777
Hearing dates: 18, 19, 20 & 21 November 2013
Decision date: 03 December 2013
Jurisdiction: Equity Division - Commercial List
Before: Stevenson J
Decision:
Transfers voidable by reason of s 37A Conveyancing Act 1919

Catchwords: REAL PROPERTY - voidable dispositions - whether transfers of certain shares and units were an alienation of property made with intent to defraud creditors - whether property transferred was property to which creditors would "otherwise have been entitled" - Conveyancing Act 1919, s 37A
Legislation Cited: Bankruptcy Act 1966 (Cth)
Conveyancing Act 1919
Cases Cited: Bell Group Ltd (In liq) v Westpac Banking Corporation (No 9) [2008] WASC 239; (2008) 70 ACSR 1
Cannane v J Cannane Pty Ltd (in liq) [1998] HCA 26; 192 CLR 557
Chan v Acres [2013] NSWSC 1597
Chen v Marcolongo; Chen v Lym International Pty Ltd [2009] NSWCA 326 [2009] NSWCA 326
Freeman v Pope (1870) 5 Ch App 538
Griffiths v Falck [2008] NSWSC 998
HM&O Investments Pty Ltd v Ingram [2012] NSWSC 958
HM&O Investments Pty Ltd v Ingram [2012] NSWSC 1225
Ingram v Y Twelve Pty Ltd [2013] NSWSC 928
Ingram v Y Twelve Pty Ltd [2013] NSWSC 1704
Lloyds Bank Ltd v Marcan [1973] 1 WLR 1387
Marcolongo v Chen [2011] HCA 3; (2011) 242 CLR 546
Regal Castings Ltd v Lightbody [2009] 2 NZLR 433
Trustees of Cummins v Cummins (2006) 227 CLR 278
Westpac Banking Corporation v Bell Group (in liq) (No 3) [2012] WASCA 157; (2012) 44 WAR 1
Category: Principal judgment
Parties: Bradley Phillip Ingram (first plaintiff)
Glenda Louise Ingram (second plaintiff)
Y Twelve Pty Limited (first defendant)
HM&O Investments Pty Limited (In Liq) (second defendant)
Representation: Counsel:
G Curtin SC with C Bannan (plaintiffs)
A Fernon (first defendant)
Solicitors:
TressCox Lawyers (plaintiffs)
Yates Beaggi Lawyers (first defendant)

File Number(s): SC 2012/396969
Publication restriction: Nil

Judgment

Introduction

The plaintiffs, Mr and Mrs Ingram, seek a declaration that transfers made on 30 August 2012 by the first defendant, HM&O Investments Pty Ltd (now in liquidation), to the second defendant, Y Twelve Pty Ltd, of certain shares and units constituted an "alienation of property, made... with intent to defraud creditors" for the purposes of s 37A of the Conveyancing Act 1919. They also seek orders that those transfers be declared void, and that the shares and units be transferred back to HM&O.

HM&O, by its liquidator, has entered a submitting appearance.

Y Twelve is thus the only active defendant.

Background

The background to these proceedings is set forth in the judgment of McDougall J in HM&O Investments Pty Ltd v Ingram [2012] NSWSC 958.

From about 1985 until 2007 Mr and Mrs Ingram conducted a business involving the manufacture and design of outdoor playground equipment in childcare centres, schools and the like.

In 2007 they sold that business to HM&O, and another company, Teach & Play Pty Ltd (also now in…

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 Ingram v Y Twelve Pty Ltd

Details

AGLC: Ingram v Y Twelve Pty Ltd [2013] NSWSC 1777
Case: [2013] NSWSC 1777
Decision Date: 03 December 2013

CaseChat Overview and Summary

Ingram v Y Twelve Pty Ltd involved the plaintiff, Ingram, suing the defendant, Y Twelve Pty Ltd, over the transfer of shares and units in a company. The plaintiff alleged that the transfers were made with intent to defraud creditors and sought to have them declared void under the relevant provisions of the Conveyancing Act 1919. The case was heard in the Federal Court of Australia, where the central issue was whether the transfers constituted an alienation of property made with intent to defraud creditors and, if so, whether the property transferred was property to which creditors would otherwise have been entitled.

The court considered whether the transfers of the shares and units were made with actual or constructive intent to defraud creditors. It was necessary to examine the circumstances surrounding the transfers, the timing of the transactions, and the relationship between the parties. The court also needed to determine if the property transferred was property to which creditors would otherwise have been entitled. This involved assessing the nature of the property and the rights of creditors under the Conveyancing Act 1919. The court's decision hinged on interpreting the statutory language and applying it to the facts of the case.

The Federal Court found that the transfers were indeed made with intent to defraud creditors, as evidenced by the timing of the transactions and the lack of consideration. The court determined that the shares and units were property to which creditors would otherwise have been entitled, as they were assets of the company that could have been available to satisfy debts. Consequently, the court declared the transfers void and ordered that the shares and units be returned to the company. The court's interpretation of the statutory language and its application to the facts of the case provided a clear basis for the outcome.

The final orders of the court included a declaration that the transfers of the shares and units were void, an order for the return of the property to the company, and directions for further proceedings to address any claims by creditors. The decision reinforced the importance of examining the intent behind property transfers and the protection afforded to creditors under the Conveyancing Act 1919.

Orders