Reganam Pty Ltd v Crossing - [2009] NSWSC 1401

CITATION: Reganam Pty Ltd v Crossing [2009] NSWSC 1401

HEARING DATE(S): 16, 17 & 18 September 2009 (Written submissions closed 14 October 2009.)

JUDGMENT DATE :
15 December 2009

JUDGMENT OF: Smart AJ

DECISION: Summons dismissed.

CATCHWORDS: Application to set aside two transactions under s 37A Conveyancing Act 1919 - Whether intent on part of disponor or agent (wife) to defraud (including defeat, delay or hinder) creditors - Claim of resulting trust by wife to property not established by payments made.

LEGISLATION CITED: Conveyancing Act 1919

CATEGORY: Principal judgment

CASES CITED: Calverley v Green (1984) 155 CLR 242
Chen v Marcolongo [2009] NSWCA 326
Crisp v Mullings 1976 EG 730
Lumbers v W Cook Builders Pty Limited (2008) 232 CLR 635
Silvera v Savic (1999) 46 NSWLR 124
The Official Trustee in Bankruptcy v Alvaro (1996) 138 ALR 341
Wentworth v Rogers [2004] NSWCA 430
Williams v Lloyd [1934] HCA 1; 50 CLR 341

PARTIES: Reganam Pty Ltd (Plaintiff)
Phillip Barclay Murray Crossing (First Defendant)
Joanne Marion Crossing (Second Defendant)
Torcullin Pty Ltd (Third Defendant)

FILE NUMBER(S): SC 4772/2008

COUNSEL: JM White (Plaintiff)
JP Redmond (First Defendant)
S Epstein SC / A Douglas-Baker (Second & Third Defendants)

SOLICITORS: Cole & Butler (Plaintiff)
The Law Company (First Defendant)
PMF Legal (Second & Third Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Smart AJ

Tuesday 15 December 2009

4772/08 Reganam Pty Ltd v Phillip Barclay Murray Crossing, Joanne Marion Crossing and Torcullin Pty Ltd

JUDGMENT

1 By the close of the hearing the plaintiff was seeking to set aside:

a) an equitable (unregistered) mortgage granted in December 2007 by the first defendant, Phillip Murray Crossing, in favour of the second defendant, his wife, Joanne Marion Crossing, over a residential property (“the residential property”);

2 In its Amended Summons the plaintiff sought an order that Torcullin Pty Limited repay to Phillip Murray Crossing the moneys Torcullin Pty Limited had received from NAB.

3 The plaintiff claimed that both the mortgage and the transfer of moneys were made with intent to defraud creditors and were void. The plaintiff relied upon s 37A of the Conveyancing Act 1919 (NSW).

Background

4 In 1979 Phillip and Joanne Crossing purchased a farm known as Derryackie at Walcha. They ran the farm together. In 1980 she moved to Armidale and trained as an accountant. Since 1984 she worked as an accountant in a large regional centre and lived there.

5 Mr Phillip Crossing was a farmer and until about 1999, when it was sold, he lived on Derryackie.

6 In September 1990 Mrs Crossing bought the residential property but it was registered in the name of Mr Crossing. She arranged the purchase. The transfer of 5 October 1990 shows…

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.

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Details

Case: [2009] NSWSC 1401
Decision Date: 15 December 2009

CaseChat Overview and Summary

Reganam Pty Ltd brought an application against Crossing, seeking to set aside two transactions pursuant to section 37A of the Conveyancing Act 1919. The dispute arose from an alleged intent to defraud creditors on the part of the disponor or the agent, specifically the wife. Reganam argued that the wife's actions constituted a resulting trust over the property, based on payments made. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the disponor or the agent intended to defraud, defeat, delay, or hinder creditors. Additionally, the court had to determine whether the wife's claim of a resulting trust over the property was substantiated by the payments made. The determination hinged on whether there was an actual intent to defraud creditors and whether the wife could successfully argue for a resulting trust based on her contributions.

In its decision, the court found that there was no evidence to suggest that the disponor or the agent intended to defraud, defeat, delay, or hinder creditors. Furthermore, the court held that the wife's claim of a resulting trust based on the payments made was not substantiated. The court concluded that the wife had not established the necessary elements to prove a resulting trust. Therefore, the application to set aside the transactions was dismissed.

The court ordered that the application be dismissed with costs. This decision was based on the findings that there was no intent to defraud creditors and that the wife's claim of a resulting trust was not supported by the evidence. The court's ruling provided clarity on the legal issues raised and reinforced the requirements for establishing a resulting trust in such contexts.

Orders