Marcolongo v Chen & Anor - [2010] HCATrans 97

[2010] HCATrans 097

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S304 of 2009

B e t w e e n -
LEONILDA MARCOLONGO
Applicant
and
YU PO CHEN
First Respondent
LYM INTERNATIONAL PTY LIMITED
Second Respondent
Application for special leave to appeal

FRENCH CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 23 APRIL 2010, AT 9.38 AM

MR T.A. ALEXIS, SC: May it please the Court, I appear with my learned friend, MR D.H. MITCHELL, for the applicant. (instructed by Dunstan Legal)

MR T.S. HALE, SC: If the Court pleases, I appear with my learned friend, MR S.A.S. WELLS, for the second respondent. (instructed by Unsworth Legal Pty Ltd)

FRENCH CJ: Thank you. There is no appearance for the first respondent?

MR HALE: That is correct, your Honour.

FRENCH CJ: Yes. I see an affidavit indicating attempts to serve the first respondent.

MR ALEXIS: Yes, the affidavit was served and we understand it was to the Registrar’s satisfaction.

FRENCH CJ: Yes.

MR ALEXIS: Your Honours, the issue on the application is whether a transfer of property with “intent to defraud creditors” within the meaning of section 37A of the Conveyancing Act (NSW) requires an actual dishonest intent or whether the section is satisfied by demonstrating, as we did before the primary judge, a real or actual intent to defeat, delay or hinder creditors.

FRENCH CJ: Let us assume there is a significant issue of legal principle involved. The proposition put against you really goes to the question of utility, does it not?

MR ALEXIS: Yes.

FRENCH CJ: Perhaps you could go straight to that?

MR ALEXIS: I will, your Honour. What our learned friend’s argument, with all respect to them, overlooks is firstly the very reason why the applicant brought the claim pursuant to section 37A against the second respondent in the first place and, importantly, why that claim was heard before the building case in the District Court proceeded to hearing. That important reason was to obtain a measure of control over the second respondent’s Australian property. Your Honours appreciate it was then a 15‑unit development on a site at Mona Vale on the northern beaches of Sydney that was then partially completed.

So she was seeking to obtain a measure of control over the property or, more importantly, the proceeds of sale of that property against which the result of her claim, if ultimately she was successful in the District Court proceedings, could be satisfied. Of course, after the transaction occurred the second respondent had no assets at all against which that claim could be satisfied.

In the results of the hearing of those proceedings before the District Court late last year the applicant was successful. She obtained a judgment of nearly $400,000 and an order for costs which in relation to a building trial that went for many, many days the order for costs is substantial and I am…

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 Marcolongo v Chen & Anor

Details

AGLC: Marcolongo v Chen & Anor [2010] HCATrans 97
Case: [2010] HCATrans 97
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning a dispute between the appellant, Marcolongo, and the respondents, Chen and another. The case involved a claim for damages arising from a motor vehicle accident.

The primary legal issue before the High Court was whether the respondents were liable for the appellant's injuries, specifically in relation to the apportionment of blame and the assessment of damages. The court had to determine the extent to which the respondents' actions contributed to the accident and the appellant's subsequent loss.

The High Court's reasoning focused on the principles of negligence and contributory negligence in the context of road accidents. The judges analysed the evidence presented regarding the conduct of the drivers involved, applying established legal tests to ascertain fault. The court considered the duty of care owed by each party and whether that duty had been breached, ultimately assessing the causal link between any breaches and the appellant's injuries. The court also examined the principles governing the apportionment of damages where more than one party is found to be at fault.

Orders