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Jew v Holloway

Jew v Holloway

Case [2013] VSCA 260 20 September 2013

Voidable transactions

Intent to defraud creditors

Appeal

Credibility findings

Property Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0127
DEBORAH LOUISE JEW	Appellant
v
PETER HOLLOWAY	First Respondent
and
RHONDA JOY HOLLOWAY	Second Respondent

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JUDGES:	REDLICH and COGHLAN JJA and T FORREST AJA
WHERE HELD:	BALLARAT
DATES OF HEARING:	30 May 2013
DATE OF JUDGMENT/ORDER:	20 September 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 260
JUDGMENT APPEALED FROM:	Jew v Holloway & Anor (Unreported, County Court of Victoria, Judge Coish, 22 June 2012)

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REAL PROPERTY – Voidable transactions – First respondent charged and acquitted of sexually abusing the appellant and her brother – Appellant successful in civil claim for damages for sexual assault – First respondent transferred to his wife his interest in the matrimonial home – Trial judge dismissed the appellant’s claim that the transfer was voidable – Whether trial judge erred in finding that the transfer was not executed ‘with intent to defraud creditors’ – Section 172(1) of the Property Law Act 1958 – ‘Natural love and affection’ – Intent to defraud need not be the sole intent of the transferor - PT Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515; Cannane v J Cannane Pty Ltd (In liq) (1992) 195 CLR 557 ; Marcolongo v Chen (2011) 242 CLR 546 applied – Appeal allowed.

APPEALS – Appellate intervention in the face of credibility findings made by the trial judge – Credibility findings that leave untouched other evidence may render trial judge’s conclusion contrary to compelling inferences – Trial judge’s reasons failed to adequately evaluate the circumstances surrounding the transfer – Appellate court bound to intervene - Fox v Percy (2003) 214 CLR 118; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1998) 160 ALR 588 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P A Jewell SC with Ms F A L Ryan	Pearce Webster Dugdales
For the Respondents	Mr G T Bigmore QC with Mr G J Burns	Baird & McGregor

REDLICH JA

COGHLAN JA
T FORREST AJA:

The appellant commenced proceedings in the County Court, seeking damages from the first respondent, her paternal uncle, for sexual assaults committed 40 years earlier. She later added a claim in the same proceedings, seeking an order that a transfer of land from the first and second respondents to the second respondent be declared void pursuant to s 172(1) of the Property Law Act 1958 (‘the Act’). The appellant alleged that the transfer by the respondents, as joint registered proprietors, was made with the intention of defeating any claim the appellant might make for damages.

At trial, the two claims were heard together. The appellant succeeded in her claim for damages for sexual assault. The trial judge dismissed the claim that the transfer was voidable at the instance of the appellant. In so doing he found that the transfer had been made in good faith and without an intent to defraud. The appellant has appealed against that order and the findings which supported it.

The issue on appeal

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 Jew v Holloway

Details

AGLC: Jew v Holloway [2013] VSCA 260
Case: [2013] VSCA 260
Decision Date: 20 September 2013

CaseChat Overview and Summary

The appeal in Jew v Holloway concerned a dispute over the validity of a property transfer under the Property Law Act 1958. The appellant, who was successful in a civil claim for damages for sexual assault against the first respondent, argued that a transfer of the first respondent's interest in the matrimonial home to his wife was voidable. The trial judge dismissed this claim, and the appellant sought to appeal this decision. The central legal issues before the court were whether the transfer was executed with the intent to defraud creditors and whether the trial judge had adequately evaluated the circumstances surrounding the transfer.

The court examined the nature of the transfer and the intent behind it, noting that the intent to defraud need not be the sole intent of the transferor. It referred to previous cases such as PT Garuda Indonesia Ltd v Grellman and Cannane v J Cannane Pty Ltd to elucidate the concept of intent. The court found that the trial judge had failed to adequately evaluate the circumstances surrounding the transfer, particularly in light of the compelling inferences from the other evidence. The appellate court emphasised that where credibility findings leave other evidence untouched, and the trial judge's conclusions are contrary to those inferences, appellate intervention is warranted.

Given the inadequate evaluation by the trial judge and the compelling inferences from the other evidence, the appellate court allowed the appeal. The court highlighted that the trial judge's reasons did not adequately consider the circumstances of the transfer, and the findings on credibility did not account for the other evidence in the case. As a result, the appellate court found that the trial judge's conclusion was contrary to the compelling inferences from the other evidence, warranting appellate intervention. The appeal was thus allowed, and the matter was remitted for further consideration in light of the appellate court's findings.

Orders