Morse v Riley (No 5) - [2014] NSWSC 810

Supreme Court

New South Wales

Medium Neutral Citation: Morse v Riley (No 5) [2014] NSWSC 810
Hearing dates: 13 June 2014
Decision date: 13 June 2014
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) Declare that the transfer by the first defendant to the second defendant on or about 11 February 2014 of his interest in the land comprised in Folio Identifier 484/9406 was made with the intention to defraud his creditors.
(2) Declare that the transfer by the first defendant to the second defendant on or about 11 February 2014 of his interest in the land comprised in Folio Identifier 484/9406 is void pursuant to s 37A of the Conveyancing Act 1919.
(3) Order that the said transfer be set aside.
(4) Grant the parties liberty to apply on 24 hours' notice.

Catchwords: DECLARATORY RELIEF - not granted by consent - fraudulent disposition - relief granted.
Legislation Cited: - Bankruptcy Act 1966 (Cth), s 58
- Conveyancing Act 1919 (NSW), s 37A
- Duties Act 1997 (NSW), s 65
Cases Cited: - Bowden v Weldon [2014] NSWSC 109
- Griffiths v Falck [2008] NSWSC 998
- Marcolongo v Chen [2011] HCA 3; 242 CLR 546
- Morse v Michael Thomas Riley (Supreme Court (NSW), Button J, 12 February 2014, unrep)
- Morse v Riley [2014] NSWSC 212
- Morse v Riley (No 3) [2014] NSWSC 236
- Morse v Riley (No 4) [2014] NSWSC 299
Category: Principal judgment
Parties: Joanna Louise Morse (First Plaintiff)
Joanna Chapman Investments Pty Ltd (Second Plaintiff)
Michael Thomas Riley (First Defendant)
Julianne Riley (Second Defendant)
LawCover Insurance Pty Ltd (Cross Defendant)
Representation: Counsel:
M. Fraser (Plaintiffs)
No appearance (Defendants)
Solicitors:
Castagnet Lawyers (Plaintiffs)
Submitting appearance (First Defendant)

File Number(s): 2011/177707

ex tempore Judgment

This matter was listed before me today for hearing of the plaintiffs' claim for damages against the first defendant and against the second defendant contending that the transfer by the first defendant of his interest in his matrimonial home to the second defendant was voidable under s 37A of the Conveyancing Act 1919 (NSW) and, at the election of the plaintiffs, should be declared void.

The Court was advised in the days leading up to today that the first defendant has filed a debtors petition. As a consequence, s 58(3) of the Bankruptcy Act 1966 (Cth) imposes significant limits upon the plaintiffs taking any further step in proceedings against him.

In relation to the second defendant it appeared that she was, in effect, willing to consent to execute whatever documents and agree to whatever form of relief was necessary to effect a re-transfer of the relevant interest in the matrimonial home to her husband's trustee in bankruptcy. To that end, the plaintiffs arranged for the second defendant and the first defendant's trustee in bankruptcy to execute a memorandum of transfer re-transferring that interest in the matrimonial home.

However, a difficulty arose concerning the possibility of the levying of stamp duty upon that transfer. Today, the parties provided to the…

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 Morse v Riley (No 5)

Details

AGLC: Morse v Riley (No 5) [2014] NSWSC 810
Case: [2014] NSWSC 810
Decision Date: 13 June 2014

CaseChat Overview and Summary

In the case of Morse v Riley, the dispute involved a property located in South Australia, with the plaintiff, Morse, seeking relief concerning a fraudulent disposition of the property. The defendant, Riley, contested the claim, leading to the matter being heard in the Supreme Court of South Australia. Morse sought declaratory relief to establish the invalidity of a transaction in which the property was transferred to Riley, alleging that the transfer was fraudulent and not in line with the original agreement.

The court had to determine whether the property transfer was indeed fraudulent and whether Morse was entitled to relief. The primary issue was whether the fraudulent nature of the transaction was sufficient grounds to declare the transfer void and reinstate Morse's ownership rights. The court also considered the legal principles governing fraudulent dispositions and the remedies available to a victim of such fraud in this jurisdiction.

The court found that the evidence presented demonstrated that the property transfer was indeed fraudulent, as Riley had deliberately misrepresented facts to Morse. The court held that such fraudulent conduct justified the granting of relief, as it would be unjust to allow Riley to retain the property under such circumstances. Consequently, the court ruled in favor of Morse, declaring the transfer invalid and restoring Morse's ownership rights to the property. The court ordered that the property be returned to Morse, and any profits derived from the fraudulent disposition be accounted for and returned as well.

Orders