Lardis v Lakis

Case [2018] NSWCA 113

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Lardis v Lakis [2018] NSWCA 113
Hearing dates: 21 July 2017
Decision date: 24 May 2018
Before: Macfarlan JA at [1];
Meagher JA at [2];
White JA at [74]
Decision:

Appeal dismissed with costs.

Catchwords:

REAL PROPERTY – voidable dispositions – intent to defraud creditors – Conveyancing Act 1919 (NSW), s 37A – where husband transferred 49% interest in residential property to wife for stated nominal consideration – whether sufficient evidence of motive to justify finding of intent

  EVIDENCE – witness evidence – cross examination – rule in Browne v Dunn – where no cross examination directed to credibility as distinct from reliability of witness’ evidence – whether sufficient challenge to accuracy and reliability of witness’ version of events – whether primary judge permitted to reject evidence of witness
Legislation Cited: Conveyancing Act 1919 (NSW), s 37A
Supreme Court (Corporations) Rules 1999 (NSW), r 2.4
Cases Cited: Broughton v B & B Group Investments Pty Ltd [2017] VSCA 227
Browne v Dunn (1894) 6 R 67
Cannane v J Cannane Pty Ltd (In Liq) (1998) 192 CLR 557; [1998] HCA 26
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Marcolongo v Chen (2011) 242 CLR 546; [2011] HCA 3
MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329
Regal Castings Ltd v Lightbody [2009] 2 NZLR 433
Texts Cited: JD Heydon, Cross on Evidence, (8th Aust ed 2010, LexisNexis)
Category:Principal judgment
Parties: Athena Lardis (Appellant)
Edward Lakis (First Respondent)
Amazon Pest Control Pty Ltd (in liq) (Second Respondent)
Michael Victor Lardis (Third Respondent)
Representation:

Counsel:
C Birch SC, B DeBuse (Appellant)
R Newlinds SC, N Bender (First and Second Respondents)

  Solicitors:
McGrath Dicembre & Co (Appellant)
Clayton Utz (First and Second Respondents)
File Number(s): 2017/145647
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Equity
Citation:
[2017] NSWSC 321
Date of Decision:
31 March 2017
Before:
Sackar J
File Number(s):
2016/256494

Headnote

[This headnote is not to be read as part of the decision]

The third respondent transferred a 49% interest in a residential property (previously held as joint tenants) to the appellant (his wife) apparently for a nominal consideration in January 2013. In 2016, he was ordered to account to the second respondent (a company of which he had been a director and shareholder) in relation to claims assigned to the first respondent (the other director and shareholder of the second respondent). The first and second respondents then sought a declaration that the earlier transfer was voidable under Conveyancing Act 1919 (NSW), s 37A(1) as a voluntary transaction to defraud creditors. In her defence, the appellant alleged that her husband had agreed to transfer the property, when his dispute with the first and second respondents arose, in return for her agreeing to the use of their property as security for an advance of monies to meet legal and other expenses from the dispute. The appellant…

Continue reading Lardis v Lakis

Sign in free to access the full text

Details
AGLC
Lardis v Lakis [2018] NSWCA 113
Case
[2018] NSWCA 113
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute over a residential property in Sydney, where the husband, Mr. Lardis, had transferred a 49% interest to his wife, Ms. Lakis, for a stated nominal consideration. The appellant, Mr. Lardis, sought to set aside this disposition, alleging it was voidable under section 37A of the Conveyancing Act 1919 (NSW) due to an alleged intent to defraud creditors. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether there was sufficient evidence to justify a finding that Mr. Lardis had the requisite intent to defraud creditors at the time of the transfer, and whether the primary judge had erred in rejecting certain evidence presented by Mr. Lardis, particularly in light of the rule in *Browne v Dunn*. Specifically, the court had to consider whether the cross-examination of Ms. Lakis adequately challenged the accuracy and reliability of her evidence regarding the circumstances of the transfer.

The Court of Appeal found that the primary judge was entitled to reject the evidence of Mr. Lardis. The court held that the cross-examination of Ms. Lakis did not sufficiently challenge her credibility as distinct from the reliability of her evidence, and therefore, the rule in *Browne v Dunn* did not preclude the primary judge from accepting her version of events. Furthermore, the court concluded that there was insufficient evidence to establish that Mr. Lardis had the motive to defraud creditors at the time of the transfer, meaning the requirements of section 37A of the Conveyancing Act 1919 (NSW) were not met.

Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.