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Nguyen v Corbett

Nguyen v Corbett

Case [2017] NSWSC 1689 7 December 2017

Fraudulent Conveyances

Contributions to Joint Account

Constructive Trust

Property Law

Family Law

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Supreme Court

New South Wales

Medium Neutral Citation: Nguyen v Corbett [2017] NSWSC 1689
Hearing dates: 2, 3, 4 August 2017; final written submissions received 18 August 2017
Date of orders: 07 December 2017
Decision date: 07 December 2017
Jurisdiction: Equity
Before: Parker J
Decision:
Transfers liable to be set aside

Catchwords: Land Law – fraudulent conveyances – costs orders made against husband in previous proceedings – conveyance by husband to wife pursuant to property settlement following separation – intent to defraud creditors – prejudice to creditors – purchaser in good faith without notice – onus – compromise as valuable consideration – inference from facts – constructive notice – notice of agent – Conveyancing Act 1919 (NSW), ss 37A, 164
Equity – conveyance by husband to wife pursuant to property settlement following separation – alleged equitable proprietary interest of wife – contributions to joint account used for mortgage repayments – payments for renovations – “failed joint venture” equity – proprietary estoppel
Judgments and Orders – conveyance by husband to wife pursuant to consent orders – setting aside consent orders – non-disclosure of liabilities – Family Law Act (Cth), s 79A
Legislation Cited: Conveyancing Act 1919 (NSW), ss 37A, 164
Family Law Act 1975 (Cth), ss 79, 79A, 90G
Law of Property Act 1925 (UK), ss 172, 199
Cases Cited: Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12
Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Chan v Acres (2013) 51 Fam LR 90; [2013] NSWSC 1597
Coghlan v Alexander (1905) 5 SR (NSW) 441
Corbett v Nguyen [2008] NSWSC 1265
Green v Schneller (2002) 11 BPR 20,935; [2002] NSWSC 671
Huynh v Helleh Holdings Pty Ltd (2001) 10 BPR 19,333; [2001] NSWSC 1162
Lloyds Bank v Marcan [1973] 1 WLR 339; 2 All ER 359
Marcolongo v Chen (2011) 242 CLR 546; [2011] HCA 3
Midland Bank Trust Co Ltd v Green [1981] AC 513
Milling v Hardie [2014] NSWCA 163
Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78
O’Regan and Phillips (Supreme Court (NSW), 31 July 1992, unrep)
Semmens v Commonwealth (1989) 99 FLR 294; (1990) FLC 92-116
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Wentworth v Rogers [2004] NSWCA 430
Young v Lalic (2006) 197 FLR 27; [2006] NSWSC 18
Texts Cited: Dewitt Moore, A Treatise on Fraudulent Conveyances and Creditors’ Remedies at Law and in Equity (1908, Matthew Bender & Co)
Henry May, A Treatise of the Statutes of Elizabeth Against Fraudulent Conveyances; The Bills of Sale Acts, 1878 and 1882; and the Law of Voluntary Dispositions of Property (2nd ed, 1887, Stevens and Haynes)
JD Heydon, MJ Leeming, and PG Turner, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths)
Melville Bigelow, The Law of Fraudulent Conveyances (1911, Little, Brown & Co)
Orlando Bump, A Treatise upon Conveyances made by Debtors to Defraud Creditors (4th ed,…

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 Nguyen v Corbett

Details

AGLC: Nguyen v Corbett [2017] NSWSC 1689
Case: [2017] NSWSC 1689
Decision Date: 07 December 2017

CaseChat Overview and Summary

The case of Nguyen v Corbett involved the respondent, Corbett, who sought to set aside a conveyance of property from himself to the applicant, Nguyen. The property was conveyed following their separation as part of a property settlement. Corbett argued that the conveyance was fraudulent, as it was intended to defraud his creditors. Corbett had previously been ordered to pay costs in a separate proceeding, and he claimed that the conveyance was made to prejudice his creditors. Nguyen contended that she was a purchaser in good faith without notice of any fraud and that she had provided valuable consideration in the form of a compromise.

The court needed to determine whether the conveyance was fraudulent and if Nguyen was a purchaser with notice. It also needed to decide if Nguyen had an equitable interest in the property due to contributions towards mortgage repayments and renovations. The court examined whether Corbett's failure to disclose his liabilities amounted to a non-disclosure as defined in the Family Law Act. Additionally, the court considered whether the conveyance was voidable under section 37A of the Conveyancing Act 1919 (NSW) and if Nguyen had constructive or actual notice of any fraud.

The court held that Corbett's conveyance to Nguyen was not fraudulent. It found that Nguyen was a purchaser in good faith without notice of any fraud, as there was no evidence of actual or constructive notice. The court also found that Nguyen did not have an equitable interest in the property based on her contributions to mortgage repayments and renovations. The court concluded that the conveyance was not voidable, and the compromise agreement provided valuable consideration. The court rejected Corbett's claims and dismissed his application to set aside the conveyance.

The court ordered that Corbett pay Nguyen's costs of the proceeding.

Orders