Mangano v Bullen - [2019] NSWSC 1704

Supreme Court

New South Wales

Medium Neutral Citation: Mangano v Bullen [2019] NSWSC 1704
Hearing dates: 29 & 30 October 2019
Date of orders: 03 December 2019
Decision date: 03 December 2019
Jurisdiction: Equity
Before: Slattery J
Decision:
Summons dismissed. Plaintiff ordered to pay the defendant’s costs of the proceedings, subject to any application for a special costs order. Any motion for a special costs order must be filed by 17 December 2019 and may be made returnable on 4 February 2020.

Catchwords: REAL PROPERTY – indefeasibility – fraud exception to indefeasibility – Real Property Act 1900, s 42 – defendant and her late de facto partner (‘the deceased”) witness the affixation of a company seal of the corporate vendor to a memorandum of transfer of real property under the Real Property Act – memorandum of transfer registered – the defendant and the deceased thereby become tenants-in-common – but at the time of execution of the transfer, the company had already been deregistered – the defendant and the deceased occupy the property until his death in 2015 – shortly before his death, her tenancy-in-common with the deceased is converted to a joint tenancy – the defendant becomes the registered proprietor of the property by survivorship after his death – the plaintiff, the daughter of the deceased and executrix of his estate, seeks a declaration that the transfer and the later creation of the joint tenancy were void as a fraud upon the National Companies and Securities Commission, in whom the property was vested at the time of the 1986 transfer – whether the defendant was knowingly involved in any fraud associated with the transfer – whether the transfer and the later creation of the joint tenancy are defeasible at the suit of the plaintiff.
Legislation Cited: Limitation Act 1969, s 27
Real Property Act 1900, s 42
Succession Act 2016, Chapter 3
Cases Cited: Assets Co Ltd v Mere Roihi [1905] AC 176
Bank of South Australia Ltd v Ferguson (1998) 192 CLR 248
Breskvar v Wall (1971) 126 CLR 376
Grgic v Australian and New Zealand Banking Group Ltd (1994) 33 NSWLR 202
Category: Principal judgment
Parties: Plaintiff: Silvana Mangano
First Defendant: Rosemary Ann Bullen
Second Defendant: Australian Securities and Investment Commission
Representation:
Counsel:
Plaintiff: Mr J.S. Emmett
First Defendant: Dr C. Birch SC
Second Defendant: submitting appearance
Solicitors:
Plaintiff: James Lyons, Murphy Lyons
Defendant: Bharath Balasubramanian, Marsdens Law Group

File Number(s): 2018/179147
Publication restriction: No

Judgment

Camfield Propriety Limited (“Camfield”) was incorporated on 31 May 1979 and deregistered on 13 March 1984. During its short existence, Mr John Mangano and his partner, the defendant, Ms Rosemary Ann Bullen, used Camfield as the corporate vehicle to develop five properties in inner western Sydney. They occupied one of these together: a property located in Talfourd Street, Glebe ("the Glebe property").
Close to Christmas day 1986, and almost two and a half years after Camfield’s deregistration, Mr Mangano and Ms Bullen witnessed the affixing of Camfield’s company seal on a Real…

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 Mangano v Bullen

Details

AGLC: Mangano v Bullen [2019] NSWSC 1704
Case: [2019] NSWSC 1704
Decision Date: 03 December 2019

CaseChat Overview and Summary

Mangano v Bullen involved a dispute over the validity of a transfer of real property and its subsequent conversion into a joint tenancy. The plaintiff, Mangano, was the daughter of the deceased and the executrix of his estate, while the defendant, Bullen, was the registered proprietor of the property. Mangano sought a declaration that the transfer and the subsequent creation of the joint tenancy were void as a fraud upon the National Companies and Securities Commission, the body in whom the property was vested at the time of the transfer. The central issues before the court were whether Bullen was knowingly involved in any fraud associated with the transfer and whether the transfer and the creation of the joint tenancy were defeasible.

The court examined the circumstances surrounding the transfer and whether Bullen was aware of the fraudulent nature of the transaction. The Real Property Act 1900, s 42 provided the legal framework for determining whether the transfer could be considered voidable due to fraud. The court found that Bullen had witnessed the affixation of a company seal to the memorandum of transfer under the Real Property Act, despite the company being deregistered at the time of the transfer. This fact was crucial in determining whether Bullen's involvement in the transaction constituted knowledge of the fraud.

After carefully considering the evidence, the court concluded that Bullen was not knowingly involved in any fraud associated with the transfer. The court found that there was no evidence to suggest that Bullen was aware that the company had been deregistered or that the transfer was invalid. As a result, the court held that the transfer and the subsequent creation of the joint tenancy were not defeasible at the suit of the plaintiff. The court found that the registration of the transfer under the Real Property Act conferred indefeasibility upon Bullen, and the plaintiff's claim was dismissed.

The court did not make any orders as the plaintiff's claim was dismissed. The defendant remained the registered proprietor of the property, and the transfer and the creation of the joint tenancy were upheld.

Orders