Loder v Aysom & Ors; Denyllek Pty Limited v Aysom & Ors; Bertoli v Aysom

The proceedings before the High Court of Australia involved applications for special leave to appeal concerning property disputes arising from divorce proceedings. The primary dispute concerned the validity of certain transactions involving companies that were allegedly the "alter ego" of the husband. The wife sought orders relating to the former matrimonial home and a lump sum payment, as well as injunctions restraining the disposition of assets by two companies, Parts Master Pty Limited and Torumba Pty Limited. These injunctions were granted on 30 July 1985. A subsequent deed dated 13 June 1986, between Torumba as mortgagor and Denyllek Pty Limited as mortgagee, secured a loan of $100,000 by a charge over Torumba's assets, with the husband and Parts Master as guarantors. Following default by Torumba, the first and third applicants were appointed receivers and managers and purported to sell the business.

The legal issues before the court revolved around the validity of three transactions, including the deed of June 1986, which were challenged under a provision of the Family Law Act empowering the court to set aside transactions in certain circumstances. The primary judge, Nygh J, found all three transactions to be shams and set them aside. The Full Court, however, overturned this decision regarding the first two transactions, finding insufficient evidence of them being shams. The Full Court also considered the third transaction, the deed of June 1986, and held that it was not conducted in the ordinary course of business.

The High Court was required to determine whether the Full Court erred in its findings. The Full Court's reasoning was that while the primary judge found the transactions to be shams, there was insufficient evidence to support this conclusion for the first two. Regarding the third transaction, the Full Court determined that the deed of June 1986 was not in the ordinary course of business, which was a critical factor in its assessment of the transaction's validity. The legal principle applied by the Full Court involved scrutinising the evidence to determine if transactions were shams or otherwise invalid under the relevant Family Law Act provisions.