Johnson v Leader Computers Pty Ltd as Trustee for the Leader Computer Wholesale Trust; Johnson v Synnex Australia Pty Ltd

[2014] HCATrans 129

[2014] HCATrans 129

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A7 of 2014

B e t w e e n -

FAY JOHNSON

Applicant

and

LEADER COMPUTERS PTY LTD ACN 093 139 354 AS TRUSTEE FOR THE LEADER COMPUTER WHOLESALE TRUST

Respondent

Office of the Registry
  Adelaide  No A8 of 2014

B e t w e e n -

FAY JOHNSON

Applicant

and

SYNNEX AUSTRALIA PTY LTD ACN 052 285 882

Respondent

Applications for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 20 JUNE 2014, AT 10.22 AM

Copyright in the High Court of Australia

____________________

MR A.L. TOKLEY, SC:   May it please the Court.  I appear for the applicant in each of the two matters with MR M.B. MANETTA.  (instructed by Mark Esau)

MR M.C. LIVESEY, QC:   If the Court pleases, I appear with MR T.A. BESANKO for the respondent in each matter.  (instructed by Andersons Solicitors and Michael Agar)

FRENCH CJ:   Yes.  Yes, Mr Tokley.

MR TOKLEY:   Thank you, your Honours.  Your Honours know that this matter involves two principal issues.  What we call the restitution issue is the first, and the intention to defraud issue, involving section 86 of the Law of Property Act is the second of those two matters.

FRENCH CJ:   You have got the burden of some significant factual findings against you, have you not?

MR TOKLEY:   Well, your Honours, significant factual ‑ ‑ ‑

FRENCH CJ:   Well, you navigate your way around them.

MR TOKLEY:   Yes, we will indeed, indeed.  Your Honour, there are certainly some factual findings based on inferences that arise, but we nevertheless say that the matter raises such questions of general public importance in an everyday context that it is worthy of grant of special leave to appeal.

GAGELER J:   You do not challenge the findings of fact in your notice of appeal.

MR TOKLEY:   We challenge the inferences, your Honour, in this sense.  That the inference, for example, that the loan – sorry, the request was made by the husband in his capacity as a director of the company, Arcom.  We say that the paragraphs, in particular in the judgment of Justice Blue, simply do not support such an inference being drawn, and in fact there are, in addition to – I can take your Honours to that part in a moment – but, in addition to that, it would appear that his Honour Justice Blue has made inconsistent findings in that regard as well, because the findings that he makes at paragraphs 88 through to 92, which are the critical paragraphs – that is at application book, page 63 ‑ your Honours will see at paragraph 88 at application book page 63, his Honour Justice Blue says:

Contrary to Mrs Johnson’s contentions, on appeal, there was ample evidence to support a finding that the requests made by Mr Johnson were not in made in his personal capacity but as a director of Arcom.

His Honour then goes on to give in paragraph 88, 89, 90, 91 and 92, various statements upon which it seems he bases his decision that there was this evidence which could support such a finding.  But if I can just, by way illustration, take your Honours straight to paragraph 90, you will see his Honour Justice Blue says:

The Johnsons’ pleaded case was that all of the payments made out of the Johnson Superannuation Fund to or for Arcom between July 2009 and May 2010 totalling $946,099 were made at the request of Mr Johnson in his personal capacity . . . Mr and Mrs Johnson both gave evidence to the same effect.

Now, that particular paragraph cannot be a basis upon which to make a finding adverse to the Johnsons that the requests were made by Mr Johnson in his capacity as a director of Arcom, so the inference that we are up against is an inference based upon those particular paragraphs.  If one contrast what his Honour says at paragraph 88 with what his Honour said at application book page 50 at paragraph 30 and following, at paragraph 30, in the second sentence, his Honour Justice Blue says:

Mr and Mrs Johnson gave evidence, and it was common ground at trial, that the transfer was made by Mrs Johnson at the instigation of Mr Johnson.  It was general practice for Mrs Johnson rather than Mr Johnson to make transfers between accounts and to draw cheques on behalf of the Johnson Superannuation Fund, regardless of the nature or purpose of the payment.

His Honour then goes on in paragraphs 31, 32, 33 and 34 and so, to identify all of the payments made out of the superannuation fund into Arcom’s bank account and the amounts and in respect of each one it seems to be common ground that on each occasion the payments were made at the request of the husband of the wife to make those payments.  The husband was ‑ ‑ ‑

FRENCH CJ:   Can I just take you forward for a moment to page 65 paragraph 96.  I am not sure whether the third last line there, there is a misprint.  Should that be:

In the present case, on the [un]challenged findings of the trial Judge –

MR TOKLEY:   Well, I think that is a good question, your Honour.

FRENCH CJ:   You think what, I am sorry?

MR TOKLEY:   Yes, I am sorry, your Honour, that is a good question.  I read it as ‑ ‑ ‑

FRENCH CJ:   It seems the whole context seems to suggest that that is the position.

MR TOKLEY:   Yes.

FRENCH CJ:   Well, that there was a direct legal relationship between Mrs Johnson and Arcom, namely that of creditor and debtor.

MR TOKLEY:   Yes.

FRENCH CJ:   She was advancing the money to Arcom, albeit at the request of Mr Johnson.

MR TOKLEY:   Yes, your Honour, but not only to Arcom and if your Honour would stay with me on this point for one moment, but if your Honour would also look at application book, page 11, your Honour will see that in paragraph 43 her Honour sets out the pleading there.  The payments were not only to Arcom but payments were to other creditors of Arcom as well.  There does not seem to be, your Honour ‑ ‑ ‑

FRENCH CJ:   To or for the benefit of Arcom.

MR TOKLEY:   Yes, your Honour, exactly.

FRENCH CJ:   Yes.

MR TOKLEY:   So, one way of looking at the relationship is that there would be a situation of creditor and debtor between Mrs Johnson and Arcom, by virtue of the payments that have been made to Arcom itself but that does not preclude the existence of the restitution obligation on the part of the husband in the situation where the payments were made for and at the request of the husband.  That is the ‑ ‑ ‑

FRENCH CJ:   How does that obligation arise?

MR TOKLEY:   It arises, your Honour, as a matter of fact because the husband has requested the wife to make payments to a third party on his behalf and that is the Lumbers v Cook analysis that was relied upon.  We say that the problem with the way in which that was treated by both the trial judge and by Justice Blue in the Full Court was that, first of all, the trial judge suggested that there was some necessity for a benefit on the part of Mr Johnson before the restitutionary obligation could arise and we say that is simply not consistent with the principle identified by this Court in Lumbers v Cook and his Honour Justice Blue accepted that benefit was not an ingredient or element of the restitutionary obligation.  But his Honour then went on to say that benefit was not irrelevant in this context.  Your Honours will find that at application book page 62, paragraph 81.  The way in which his Honour Justice Blue used the question of benefit can be seen from the last sentence of that particular paragraph:

However, the question upon whom the benefit is conferred may be a relevant factor in determining whether the request has been made by the defendant.

We say that that simply introduces the notion of benefit in the context of the restitutionary obligation through the backdoor instead of through the front door, the front door having been closed by this Court in Lumbers v Cook.  Your Honour, the basic issue in terms of the findings of fact that this Court is in just as a good a position as the courts below to draw the relevant inferences from the material that was before the court below. 

Having said that, of course, one does not ordinarily ask the Court to deal with large factual disputes, I understand that, but the importance of the special leave questions that arise are against this particular background of facts.  It does seem to us that the two relevant principles that are contained in Lumbers v Cook, and also in Marcolongo v Chen, have been misunderstood by the court below, first because, as I have said, as to paragraph 81, there has been a reintroduction of the notion of benefit in determining whether a request has been made by a defendant, and secondly ‑ ‑ ‑

FRENCH CJ:   Well, you have still got then the question of intend to defraud to deal with, have you not, notwithstanding – let us suppose you succeeded on that argument about a debtor/creditor relationship?

MR TOKLEY:   Yes.  Well, your Honour, if I can short‑circuit a lot of my submissions and take your Honours to ‑ ‑ ‑

FRENCH CJ:   I mean, the principle seems to be paragraph 110 at page 69; that is the threshold point anyway which takes you into that.

MR TOKLEY:   Yes, your Honour.

FRENCH CJ:   Here we have particular circumstances attending this conveyance, do we not, it is the day after the company goes into administration and there is a great rush to get it all done in a rather odd way and so forth.

MR TOKLEY:   Yes.  Yes, your Honour, there are parallels with the decision in Marcolongo v Chen.  The significant point there, if I can stay with you – I will stay with your Honour, I will come back to that particular paragraph, but if I can invite your Honour’s attention to application book page 68, which is just the other side, and to paragraph 108, and to the last sentence in paragraph 108.  Your Honours, with great respect to his Honour Justice Blue, I am pretty sure that this Court did not say that what is there said to be the holding in that sentence. 

The way in which – and we have provided the Court with the book of authorities, your Honours may wish to go to it, but it is clear from your Honours’ decisions in Marcolongo v Chen that Mr Chen sought to defend his position on the basis, not that he was a creditor for value, but that he was a purchaser for value, and that can be found at Marcolongo v Chen (2011) 242 CLR 546 at page 564 in paragraph 54 of the Court’s judgment, behind tab number 4, your Honour.

FRENCH CJ:   Yes.

MR TOKLEY:   Your Honour will see that it says:

In this Court Mr Chen submits that he was a purchaser for value.

We rely upon the earlier decision which was quoted with approval by this Court of Glegg v Bromley and, in particular, we rely upon the judgments of Lord Justice Vaughan Williams at page 484 of the judgment where his Honour said:

Finally, I may say that I have taken it for granted throughout my judgment that mere preference of one creditor over another does not bring the case within the statute 13 Eliz –

At page 492 to similar effect was the judgment of Justice Parker who was quoted by this Court in Marcolongo v Chen.

FRENCH CJ:   But that does not mean that a disposition of an asset to somebody who stands in a relationship of creditor cannot constitute a conveyance with intent to defraud creditors.  The mere fact that – the fact that mere preference does not bring the case within does not mean that conveyance to a creditor cannot constitute a conveyance with intent to defraud creditors.

MR TOKLEY:   Your Honour, I wonder if I might raise that ‑ ‑ ‑

FRENCH CJ:   Not least where the creditor is your wife and it is a matrimonial home. 

MR TOKLEY:   Your Honour, of course, in Glegg v Bromley itself it was a case involving husband and wife where the wife had assigned the fruits of her court action and at page 484 my learned junior reminds me that in the judgment of his Honour Lord Justice Vaughan Williams he adds to his paragraph:

even though the parties may have been minded to defeat a particular creditor.

Also, there was a finding which your Honours will see at page 475 of the judgment that the trial judge found:

That the assignment was executed deliberately with the object of defeating Mr. Hay’s claim, but that as Mrs. Glegg owed money to her husband it was for value, and that the intention to prefer one creditor to another did not prevent it from being bona fide within the meaning of 13 Eliz. c. 5.

So the way in which the point was put in the court below, as your Honours will know, was that the wife had made the payments at the request of the husband.  In consideration of those payments the husband transferred his interest in the matrimonial home.  That was done with the intention of, in effect, preferring her as a creditor to other creditors.  Just to round that point off, your Honours, that was recognised by his Honour Justice Blue at the application book page 70 in paragraph 113 of the judgment where your Honours will see his Honour Justice Blue says:

Nevertheless, if the trial Judge had found that Mrs Johnson was a creditor of Mr Johnson, that might potentially have impacted on her overall finding as to Mr Johnson’s state of mind.  If the trial Judge had been wrong in her conclusion that Mrs Johnson was not a creditor, it would have been necessary to consider the extent to which that vitiated her overall conclusion on the factual issue of intent to defraud.  That question does not arise given the conclusion reached on the first limb of Mrs Johnson’s contention on appeal.

So our point is this:  on the correct analysis, Mrs Johnson having advanced those moneys at her husband’s request, he had an obligation to her – a restitutionary obligation towards her to restore those moneys.  She was, in effect, a creditor.  On the relevant authorities, she was being preferred as a creditor.  That was a relevant consideration for the trial judge.  His Honour Justice Blue correctly identifies that the trial judge did not take those matters into account, that if she had done so, it may have altered the conclusion that she reached about the intention on the part of the husband.

GAGELER J:   That assumes in your favour that this Court would overturn the factual conclusion.

MR TOKLEY:   Yes, your Honour.  We say, that my earlier point that the factual conclusion as to capacity, is an inference drawn from the documents but – so that this Court Fox v Percy is in just as good a position as the trial judge in the court below to come to those factual inferences – those factual conclusions.  There is nothing against – there is surprisingly no document or finding expressly against the wife being a creditor.  There is what your Honour the Chief Justice took me to at page 65 in paragraph 96.  I said I would come back to that point that:

there was a direct legal relationship between Mrs Johnson and Arcom –

Your Honours, that legal relationship can exist but it does not defeat the restitutionary obligation that arises as between husband and wife, so ‑ ‑ ‑

FRENCH CJ:   That is harking back to paragraph 67, I suppose, at page 58, that Mrs Johnson:

does not challenge the trial Judge’s rejection of the Johnsons’ primary case that there was a loan by Mrs Johnson to Mr Johnson and a debt –

so that is put to one side.  It all turns on the existence of the restitutionary obligation.

MR TOKLEY:   Yes, your Honour.  Your Honour, those are our submissions.

FRENCH CJ:   Yes, thank you.  Mr Livesey.

MR LIVESEY:   If the Court pleases.  What was ultimately involved in this matter was the question of fact that your Honour the Chief Justice has identified, namely, the existence of an intention to defeat creditors.  That was answered in a context where Mr and Mrs Johnson ‑ ‑ ‑

FRENCH CJ:   This is on the assumption - is this limb of your argument being put on the premise that there is some restitutionary obligation?

MR LIVESEY:   Assume that for the moment.  I will come back to that in a moment ‑ ‑ ‑

FRENCH CJ:   Yes.

MR LIVESEY:    ‑ ‑ ‑ and indicate why that is unsound.  But, even assuming that to be so, the findings that were made – the seriously adverse findings that were made were to the effect that the trial judge disbelieved Mr and Mrs Johnson when they said that they entered into these arrangements in the way in which it was alleged, namely, so as to give rise to a personal obligation in Mr Johnson.

There are two aspects to what was described as the February 2010 agreement.  The first was the request by Mr Johnson to Mrs Johnson that she make payment from the joint superannuation fund to or on behalf of the benefit of the company Arcom.  That was at best equivocal because that was the way in which they had operated their business affairs in any event.

FRENCH CJ:   There was a rejection of a notion that she was, as it were, a bystander in relation to the conduct of the business, I think.

MR LIVESEY:   Precisely, and the trial judge made findings about the fact that she kept an eye on the books and records of the company, not as closely as she had done when she was a director but she nevertheless did so.  The second aspect of the February 2010 agreement was that it was agreed that the husband would put his interest in the family home to her by way of payment in return for that ‑ ‑ ‑

FRENCH CJ:   Now, they explain the delay by reference to getting bank clearance because of security the bank held over that property and another, I think.

MR LIVESEY:   It was worse than that.  It was suggested – and this is in application book at page 34, paragraph 143, fourth line, that there would be – that it was something of a coincidence that the timing worked at the way in which it did.  Your Honours will see:

I do not accept that it was a coincidence that the transfer . . . was made on the day after the companies were placed into administration.

This, of course, was the end stage of an 18 month process which had led Mrs Johnson to become psychiatrically unwell, stressed, troubled.  Yet, both of them professed to suggest that they believed the companies would trade on.  The trial judge rejected that too.  So the position was that they were utterly unable to account for the circumstances in which this came about, the February 2010 agreement having been rejected, the trial judge disbelieving their evidence in those matters, and yet, in a sense Lazarus‑like, the restitution case is said to rise up and secure a benefit for Mr Johnson because it said that in that setting there could be no finding of an intention to defeat creditors.  We say quite the contrary.

The objective facts spoke very strongly in favour of this being a common or garden variety of a cloak to hide a fraud which was to place Mr Johnson’s interests in the family home, he being the sole director, beyond the reach of the creditors, including my clients.  This was done the day after the companies were placed into administration.

GAGELER J:   Was the restitution case run at all at trial?

MR LIVESEY:   It was run as an alternative, but as both the trial judge and particularly Justice Blue found, the rejection of that had serious consequences for the restitution case as well, insofar as there was an attempt to bifurcate the payment arrangements to suggest that whilst payment directly to the company, there was in some sense a residual obligation in Mr Johnson and in that setting, in that setting of a rejection, a disbelief of the evidence of Mr and Mrs Johnson, it is entirely unsurprising that the finding of an intention to defeat creditors was made.

Can I move to the suggestion that even if there is a form of consideration, there could not be a finding of an intention to defeat creditors because of the asserted effect of Glegg v Bromley.  It is true that their Lordships in that case said from time to time that the mere preference of one creditor over another does not bring the case within Elizabethan statute, but as my friend has perfectly properly conceded, in Marcolongo v Chen, this Court held that the existence of consideration was not decisive.  That is to say, the absence of consideration did not necessarily result in a finding of fraud and the presence of consideration did not necessarily result in a finding that there could be no fraud.

That is demonstrated by the facts in Marcolongo v Chen.  With great respect, my friend is not correct to say that Mr Chen, in that case, was not a creditor, he was, and the Court’s findings to that effect appear, or the recitation of the findings earlier made, appear at paragraphs 41, about six, seven lines from the bottom:

However, Mr Chen had considered as a possible course that he should buy the subject property from Lym as a means of obtaining the discharge of substantial debts due from the Liu interests to him and his associates.

That is repeated at paragraph 44, and it also appears in Justice Heydon’s separate reasons at paragraph 81.  So, that was a case where there was consideration.  There was a doubt about the extent of it, but like this case, the arrangements were entered into in haste.  Unlike this case, Marcolongo at least had some paperwork at the time of the asserted agreement, which gave a basis for the argument.  This case is worse.  This is, as the trial judge said at paragraph 144, application book 34:

an ex post facto construction of the situation.

That is said by her Honour on the last line, and her Honour makes the positive finding at paragraph 144 which, in my submission, is a concurrent finding, the Full Court agreed with this:

unlikely that Mr or Mrs Johnson believed that the payments . . . would give rise to personal liability . . . Mrs Johnson knew that Mr Johnson was the director of the companies and that he was acting in that capacity –

That was a finding made by her Honour, it is a finding with which the Full Court agreed.  It would be necessary for this Court to overturn those concurrent findings before one could entertain any restitutionary obligation.  Briefly, so far as the Lumbers point is concerned, his Honour Justice Blue’s reasons in relation to that appear – pardon me ‑ ‑ ‑

FRENCH CJ:   I think it is 60.

MR LIVESEY:   Yes.

FRENCH CJ:   Page 60.

MR LIVESEY:   I am obliged.  The point that is made is that the mere request divorced from benefit is not the concept involved.  It is a request for and on behalf of, and so in that setting, where the request is made by Mr Johnson for and on behalf of the company, Mr Johnson can be seen to be acting as the agent, indeed, he was the director of the company, and that ordinarily gives rise to no restitutionary obligation in him, that, of course, being the importance of the concurrent findings.

FRENCH CJ:   I suppose it might be said that it reduced his potential exposure as a guarantor for creditors of the company who were the suppliers.

MR LIVESEY:   Potentially, but that feeds back into the guilty or fraudulent intent as to what he was doing, this of course being the matrimonial home, and what was being done, in effect, was to use the superannuation proceeds, leaving his superannuation proceeds intact, but to sure up his position in relation to the matrimonial home being the major asset that was liable to be subject to attack.

So what the net result of this was – and I should emphasise that this was something engaged in after a new lawyer was seen for the first time on 20 October, after the companies were placed into administration – the net result was to try and immunise the family home from attack but leave in place his own interests in the joint superannuation fund.  Mr Besanko reminds me that that is considered by her Honour, admittedly above her Honour’s findings at 144, application book 34, last two lines of paragraph 143.

FRENCH CJ:   The point I was making, really, was that if there is money put into the company, the company’s ability to meet outstanding debts is enhanced.  The risk of his exposure as a guarantor of those debts is reduced, and therefore there might be said to be a benefit of an economic character to him, even though indirect, but that does not really seem to have been run as part of the argument in support of a restitutionary obligation.

MR LIVESEY:   No, no it does not.  As I have submitted, the argument that was run was based on the February 2010 agreement.  There was a fall‑back restitutionary point run, along with that, and the evidence of Mr and Mrs Johnson was simply disbelieved about what they said was

agreed.  That means, in my respectful submission, that insofar as the ultimate question of fact is concerned, and it is a question of fact about the requisite fraudulent intent, this is an entirely inapt vehicle to explore any issue that might arise regarding restitution because of the seriously adverse credit findings, and because, as my friends can see in the reply, even were the Court to accept in some measure the restitutionary argument and the finding of Mrs Johnson being a creditor, there would still need to be a further factual finding about the existence or otherwise of the fraudulent intent.  There would be a remittal involved. 

So on no view of this case would the issues that are raised by our learned friends result in a resolution of the matter, and there is every reason to think that the Court would agree with the views taken both by the primary judge and by the Full Court about the circumstantial objective evidence which crowded such a powerful case in favour of a finding that there was an intent to defraud.  If the Court pleases.

FRENCH CJ:   Thank you.  Yes, Mr Tokley.

MR TOKLEY:   Thank you, your Honours.  Your Honours, if I could invite you to turn to application book page 28.  In response to your Honour Justice Gageler’s question to my learned friend, your Honour will see at page 113 where the restitutionary argument is dealt with by the trial judge at paragraph 113.  But then, at paragraph 114, that is where her Honour introduces the notion of “benefit” in the second sentence:

However the law recognises such a claim where there has been a benefit to B.  There must be some benefit or enrichment to B –

Then, in the next paragraph 115:

In this case, the defendants assert that Mr Johnson requested that Mrs Johnson pay Arcom.  The benefit . . . was received by Arcom.

Her Honour goes on to make this rather cryptic statement:

My view is consistent with the liability of directors and employees who obtain funds, lines of credit or goods on behalf of a company; they are not liable for debts of a company as they do not directly benefit.

But, your Honour, personal liability of a director is nothing to do with personal benefit.  The fact is that the company is the person that is the party to the contract, not the director.  That is why directors are not held personally liable.  But it is this point, we say, that her Honour misunderstood the relevant principle and misapplied the relevant principle and that is apparent from what his Honour Justice Blue had to say at application book ‑ ‑ ‑

FRENCH CJ:   I think you are looking for 60 to 61, is it paragraph 76?

MR TOKLEY:   Yes, it is, your Honour.  In particular, application book 62, paragraph 82, where his Honour Justice Blue quotes from the trial judge, the last sentence that I read out to your Honours.  His Honour Justice Blue says that properly understood the trial judge was “making a finding” as to such matters but that cannot be right, with great respect, because if one goes back to application book, page 29, her Honour has very clearly set out in block capitals – sorry, in bold, the heading:

My views and findings –

So that the paragraphs that I just took your Honours to, what the trial judge was there doing was identifying what she thought was the relevant principle, making comments about the same.  Her Honour never actually makes an express finding in the terms in which his Honour Justice Blue says that she did. 

My learned friend said that in Marcolongo v Chen, it is certainly the case that Mr Chen asserted what your Honours may remember that Mr Chen himself never had argument presented on his behalf before this Court.  He put in written submissions which the Court had regard to.  But it is clear – it would be unusual if this Court were setting aside the point from Glegg v Bromley about preferring one creditor over another by a decision which did not directly address that issue, and I do not think that Marcolongo v Chen is an authority for that proposition and, as I said, the way in which the Court dealt with the matter could be best seen at page 564 where having quoted from the trial judge Justice Hamilton page 564 in the last sentence, last two sentences of the quote from Justice Hamilton, Justice Hamilton said:

Mr Chen cannot characterise himself as a purchaser in good faith not having notice of the intent to defraud.  This equally flows from the fact that I have found ‑

et cetera, and then the first paragraph under that:

In this Court Mr Chen submits that he was a purchaser for value.  But the findings by the trial judge set out above deny any application in his favour of the proviso –

Your Honours, there was a reference by the trial judge at application book 29, to the fact that there was a personal guarantee but the way in which it was approached by the trial judge at application book 29, paragraph 117, is rather peculiar because your Honours will see in that paragraph there, her Honour said:

I think that this argument lacks merit.  Mr Johnson was not just another creditor.  He had given a charge over his real property.

But that does not, with great respect to the trial judge, have any relevancy in this particular case.  As your Honour the Chief Justice pointed out, the fact was that he had given personal guarantees.  The fact was that if the debts of the company were being paid, he would be insulated from any pursuit, on his personal guarantees, by creditors, so that he was getting a direct benefit in that regard.  Your Honour, finally – because I see that my time is up – the relevant principle is not one that involves the notion of on behalf of.  The relevant principle is it is money paid for and at the request of the particular individual.  May it please the Court, those are my submissions.

FRENCH CJ:   Thank you, Mr Tokley. 

The applicant seeks special leave to appeal from a decision of the Full Court of the Supreme Court of South Australia dismissing an appeal against a judgment whereby the District Court of South Australia declared that a transfer into her name of her husband’s interest in their jointly owned home was void pursuant to section 86 of the Property Law Act as made with intent to defraud creditors.  The District Court made strong factual findings adverse to the applicant and her husband.  Those findings, and the circumstances of the transfer, on their face lead to the conclusion that the prospects of success of an appeal are not such as to warrant the grant of special leave.  Special leave should be refused with costs.

AT 10.59 THE MATTER WAS CONCLUDED