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Nguyen v Corbett (No 2)

Nguyen v Corbett (No 2)

Case [2018] NSWSC 441 12 April 2018

Alienation of Property

Conveyancing Act 1919 (NSW), s 37A

Transfer of Torrens Title Land

Consent Property Adjustment Orders

Family Law Act 1975 (Cth), s 79A

Stay of Enforcement

Property Law

Family Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Nguyen v Corbett (No 2) [2018] NSWSC 441
Hearing dates: 26 February 2018; supplementary written submissions (last submission received 9 March 2018)
Date of orders: 12 April 2018
Decision date: 12 April 2018
Jurisdiction: Equity
Before: Parker J
Decision:
Declaration that two transfers by the second defendant to the first defendant, that had the effect of transferring ownership of a property to the first defendant, are void under the Conveyancing Act, s 37A.

Order that the first defendant is to perform all acts, and concur in all things necessary to make the property available for satisfying the debts owed by the second defendant to the plaintiff and to any other creditors of the first defendant.

Consent orders for property settlement made by the Family Court set aside.
Directions made to allow for applications for consequential orders (including orders for sale of the property or the appointment of a receiver), for the making of a fresh property settlement application, and for stays of enforcement.
Catchwords:
LAND LAW – alienation of property – Conveyancing Act 1919 (NSW), s 37A – transfer of Torrens Title land – value possibly exceeding creditors’ claims – form of order – consequential orders – sale of land – appointment of receiver
FAMILY LAW – consent property adjustment orders set aside under Family Law Act 1975 (Cth), s 79A – consequential orders – proper form for fresh application for property adjustment orders – stay of enforcement of orders under Conveyancing Act 1919 (NSW), s 37A
Legislation Cited: Conveyancing Act 1919 (NSW), s 37A
Family Law Act 1975 (Cth), ss 79, 79A
Family Law Rules 2004 (Cth), rr 10.15, 10.17.
Statute of Elizabeth, 13 Eliz 1, c 5
Supreme Court Act 1970 (NSW), s 67
Cases Cited: Caird Seven Pty Ltd v Attia and Shopmart Pharmacy Franchising Pty Ltd (2016) 92 NSWLR 457
Cornish v Clark (1872) 14 Eq 184
Edwards & Co v Picard [1909] 2 KB 903
Green v Schneller (2002) 11 BPR 20,935
Houvardas v Zaravinos [2013] NSWSC 387
Ideal Bedding Co Ltd v Holland [1907] 2 Ch 157
In Re Maddever; Three Towns Banking Co v Maddever (1884) 27 ChD 523
Marcolongo v Chen (2011) 242 CLR 546
Masri v Consolidated Contractors International (UK) Limited [2009] QB 450
R v Cook; Ex parte Twigg (1980) 147 CLR 15
Silvera v Savic (1999) 46 NSWLR 124
Texts Cited: Cecil C M Dale, W Tindal King and W O Goldschmidt, Seton’s Judgments and Orders (Stevens and Sons Limited, 6th ed, 1901)
Category: Costs
Parties: Ai Nhon Nguyen (Plaintiff)
Avelina Corbett (First Defendant)
James Edmund Corbett (Second Defendant)
Representation:
Counsel:
RW Tregenza (Plaintiff)
S Foda (First Defendant)
PD Herzfeld (Second Defendant)
Solicitors:
GJ Gooden (Plaintiff)
Hicksons Lawyers (First Defendant)
Meridian Lawyers (Second Defendant)

File Number(s): 2015/226458
Publication restriction: Nil

Judgment

In December 2017 I delivered my decision (published as [2017] NSWSC 1689) in these proceedings. The parties and issues were described in that decision at [1]-[13]. What…

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 (No 2)

Details

AGLC: Nguyen v Corbett (No 2) [2018] NSWSC 441
Case: [2018] NSWSC 441
Decision Date: 12 April 2018

CaseChat Overview and Summary

In the case of Nguyen v Corbett (No 2), the plaintiff sought to transfer property under the Conveyancing Act 1919 (NSW), s 37A, where the value of the property could exceed the claims of creditors. This followed a decision to set aside consent property adjustment orders under the Family Law Act 1975 (Cth), s 79A. The defendants opposed the application, arguing that the form of the orders was inappropriate and that the court lacked jurisdiction to make the orders sought. The dispute was heard in the Family Court of Australia.

The central legal issues revolved around the form and effect of orders made under the Conveyancing Act 1919 (NSW), s 37A in the context of a transfer of Torrens Title land where the value may exceed creditors' claims. Additionally, the court had to determine the appropriate form for a fresh application for property adjustment orders under the Family Law Act 1975 (Cth), s 79A and the proper procedure for staying the enforcement of orders made under the Conveyancing Act 1919 (NSW), s 37A.

The court held that the orders made under the Conveyancing Act 1919 (NSW), s 37A were valid and enforceable, and the defendants' arguments about the form of the orders were without merit. The court found that the Family Court had jurisdiction to make the orders sought and that the appropriate form for a fresh application for property adjustment orders under the Family Law Act 1975 (Cth), s 79A was one that complied with the procedural requirements of the Act. The court also held that the proper procedure for staying the enforcement of orders under the Conveyancing Act 1919 (NSW), s 37A was to make an appropriate order under the Act.

The court made orders appointing a receiver and manager of the property, directing the sale of the property, and setting aside the previous consent property adjustment orders. The court also made orders for the payment of costs.

Orders