Supreme Court
New South Wales
Medium Neutral Citation: Maria Bechara v Theodoros Haratsaris [2013] NSWSC 577 Hearing dates: 7 and 8 April Decision date: 26 April 2013 Jurisdiction: Equity Division Before: Rein J Decision: Orders the first and second defendants to pay the plaintiff's debt with freezing orders in place to continue until the plaintiff's debt is paid, or arrangements satisfactory to the plaintiff are made in lieu.
Declare pursuant to s 37A of the Conveyancing Act 1919 (NSW) that the transfer of the first defendant's interest in the property comprised in Folio Identifier 1/308418 to the second defendant is void.Declare that the second defendant holds her registered title and interest in the property comprised in Folio Identifier 1/308418 as trustee for the first defendant. Order that the second defendant transfer, to the first defendant, the second defendant's currently registered title and interest in the property comprised in Folio Identifier 1/308418.Declare pursuant to s 86 of the Law of Property Act 1936 (SA) that the transfer of the first defendant's joint tenancy interest in the property comprised in Parent Title CT 5728-413 - allotment 503 DP 76543 to the second defendant is void.Declare that the second defendant holds her registered title and interest in the property comprised in Parent Title CT 5728-413 - allotment 503 DP 76543 as a joint tenancy between herself in her own capacity, and herself as trustee for the first defendant.Order pursuant that the second defendant transfer, to the first defendant as a joint tenant with the second defendant, the second defendant's currently registered title and trusteeship interest in the property comprised in Parent Title CT 5728-413 - allotment 503 DP 76543.Stay entry and execution only of each of orders 4 and 7 for a period of 90 days from the date of this judgment and orders.Order that the first and second defendants, or either of them by themselves their servants or agents, be restrained from taking any steps to sell, transfer, mortgage or further encumber the properties, or either property, made the subject of orders 2, 3, 5, 6 other than-(a) with the prior consent in writing of the plaintiff; or(b) for the purpose of complying with orders 4 and 7; or(c) until further order of the Court.
Catchwords: CONVEYANCING ACT - whether assets transferred with the intention to defraud creditor - whether the second defendant can rely on the defence of a purchaser in good faith without notice of the first defendant's intention to defraud creditors Legislation Cited: Conveyancing Act 1919 (NSW)
Law of Property Act 1936 (SA)Cases Cited: B v U [2012] NSWSC 1416
Briginshaw v Briginshaw (1938) 60 CLR 336
Huynh v Helleh Holdings Pty Ltd [2001] NSWSC 1162
Kang v Kwan [2002] NSWSC 1187; (2002) 11 BPR 20,623
Macquarie Bank Ltd v National Mutual Association of Australia Ltd & Ors (1996) 40 NSWLR 543
Marcolongo v Chen (2011) 242 CLR 546, (2011) 274 ALR 634; (2011) 85 ALJR 380; [2011] HCA 3
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- Case
- [2013] NSWSC 577
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the property transfers were made with the intention to defraud creditors and whether Mrs Haratsaris, as the recipient of one of the properties, could rely on the defence of being a purchaser in good faith without notice of Mr Haratsaris' intention to defraud. The court had to examine the timing, consideration, and circumstances surrounding the transfers to determine if they were legitimate transactions or devices to avoid creditor claims. Additionally, the court considered the applicability of s 37A of the Conveyancing Act 1919 (NSW), which allows for the setting aside of transactions that are entered into with the intent to defeat creditors.
In delivering judgment, the court found that the transfers were indeed made with the intent to defraud Ms Bechara. The court highlighted that Mr Haratsaris left himself with no significant assets by transferring his properties, and that these actions were taken immediately following the judgment against him. The court concluded that Mrs Haratsaris could not claim to be a bona fide purchaser for value without notice, as she was aware of the circumstances surrounding the transfers. Consequently, the court ruled that the property transfers should be set aside, and the Belmore Property should be subject to the satisfaction of the judgment debt owed to Ms Bechara. The court ordered that the property be sold and the proceeds applied to discharge the judgment debt.
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