Pong Property Development Pty Ltd v Strangio

[2005] VSC 243

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6720 of 2005

PONG PROPERTY DEVELOPMENT PTY LTD	Plaintiff
v
BRUNO STRANGIO & FILIPPA STRANGIO	Defendants

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2005
DATE OF JUDGMENT:	23 June 2005
CASE MAY BE CITED AS:	Pong Property Development Pty Ltd v Strangio & Strangio
MEDIUM NEUTRAL CITATION:	[2005] VSC 243

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Practice Court - Ex parte application.

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APPEARANCE:	Counsel	Solicitors
For the Plaintiff	Mr D. Collins SC with Mr R. Andrew	Chua Tan & Associates

HIS HONOUR:

1. The plaintiff, Pong Property Developments Pty Ltd seeks an ex parte injunction restraining the second defendant, Mrs Filippa Strangio, from transferring, mortgaging or dealing in any way with the land situate at 7 Webster Street, Malvern East, described in Certificate of Tile Volume 4324 folio 664, and from taking any steps which would increase the amount secured by any security over the land, including the mortgage to Adelaide Bank Limited No. AD563608S, dated 18 April 2005, and from entering into or completing any financial transactions using that land as security, or drawing any funds from the accounts secured by the mortgage lodged on the title to the land. 

1. The proceedings have been commenced by writ filed on 21 June 2005 which, in the statement of claim, propounds that the first and second defendants are husband and wife and are the registered joint proprietors of the land which I have described. The statement of claim proceeds that by transfer dated 23 August 2004, but registered on the title only on 18 April 2005, the first and second defendants transferred the land to the second defendant. The consideration stated on the transfer was $129,000 which is substantially less than the value of the land. Primarily, in Paragraph 5, being the epicentre of the allegations in the statement of claim, it is asserted that the first defendant transferred his interest in the land to the second defendant with the intention to defraud creditors, including the plaintiff. Therein the numerous particulars are set out. In the circumstances, the statement of claim propounds, pursuant to s.172 Property Law Act 1958, the transfer is voidable at the insistence of the plaintiff as a person prejudiced by the transfer and that the plaintiff is entitled to an order that the transfer be set aside. Accordingly, the writ seeks an order that the transfer be set aside pursuant to s.172; and a direction that the second defendant transfer the first defendant's share in the land back to the first defendant and consequential orders.

1. In support of the proceeding is an affidavit sworn 21 June 2005 of Mr Tan Chua, solicitor of Chua Tan and Associates for the plaintiff, wherein he sets forth the history of the matter in the affidavit.  For the purposes of this judgment, it is unnecessary to set forth the lengthy history in that affidavit, which comprehends 100 paragraphs.  It is a matter of court record and stands on that basis.  I also have the exhibits thereto.  Filed today is a second affidavit of Mr Chua, sworn 22 June 2005, as to assessments of the value of the property on a drive-by basis.  As this is an ex parte application, I am informed by senior counsel for the plaintiff in relation to an undertaking as to damages that the plaintiff company is a company of substance with unencumbered and substantial assets.  The applications it is said are made ex parte because of an apprehension of the plaintiff that if notice were given to the defendants, there is a risk that amounts will be drawn on accounts secured by the mortgage on the property, being a mortgage by the second defendant to the Adelaide Bank Limited.

1. Relevantly to these proceedings is the following.  The plaintiff has proceedings against the first defendant at VCAT in which the plaintiff claims substantial damages arising out of civil engineering works performed in respect of a residential subdivision by companies controlled by the first defendant and set down for hearing in July 2005, as deposed to in the affidavit of Mr Chua of 21 June, paragraphs 6 to 10.  The transfer which was not registered until 18 April 2005.  Thereafter, on 3 June 2005, fortuitously it came to the notice of the plaintiff's solicitors that the first and second defendant, as joint proprietors, purported to transfer the land to the second defendant for the sum of $129,000, by mortgage of 7 April 2005 registered on 18 April 2005.  The second defendant then mortgaged the land to the Adelaide bank and it is asserted that the consideration of $129,000 on its face is substantially less than any proper and true valuation of the land, relying upon the 22 June 2005 exhibits to the affidavit of Mr Chua. 

1. In my view, sufficiently for the purposes of ex parte proceedings, the plaintiff has demonstrated that the short-term remedy it seeks is competent. 

1. In the circumstances, as the defendants are not before me, it is inappropriate for me to say anything further than that I am satisfied that the proceedings are competent on the material before me.  I will, I am sure, be most assisted by any submissions or evidence on behalf of the two defendants if subsequently such material comes forth.

1. What is presently sought is an order for a period of seven days on the basis of the usual undertaking on behalf of the plaintiff company.  I am satisfied in all the circumstances the process should issue.  Integral to the order is liberty to apply.  The two defendants, or either of them, are welcome to come back to the court on notice to the plaintiff before the period of seven days; otherwise the matter will be returnable in seven days' time.  Accordingly, the material, I direct, is to be served upon the defendants.  Mr Collins, are there any further matters which need to be dealt with?

MR COLLINS:  No, Your Honour.

HIS HONOUR:  Thank you.  I will sign the orders sought.  I will have the transcript of this brief judgment also provided to the defendants as soon as it comes to me through the system.  I am obliged to you, Mr Collins and Mr Andrew.  I return the orders and I will leave the Bench for a moment and then take other matters.

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