Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Saba v Plumb [2018] NSWCA 60 Hearing dates: 20 and 21 February 2018 Decision date: 28 March 2018 Before: Macfarlan JA at [1];
Sackville AJA at [111];
Emmett AJA at [124]Decision: Appeal dismissed with costs.
Catchwords: LAND LAW – alienation of property – the first respondent transferred property pursuant to a property settlement effected by consent orders of the Family Court of Australia – indemnity costs were awarded against the first respondent in favour of the appellant after AVO proceedings brought by the first respondent in the Local Court were dismissed – whether the first respondent intended to defraud the appellant by transferring his interest in the property – s 37A of the Conveyancing Act 1919 (NSW) considered – Marcolongo v Chen (2011) 242 CLR 546 considered – whether second respondent was a purchaser in good faith without notice Legislation Cited: Bankruptcy Act 1966 (Cth)
Conveyancing Act 1919 (NSW), ss 7, 37A, 66G
Evidence Act 1995 (Cth), s 140(2)
Family Law Act 1975 (Cth), s 79
Uniform Civil Procedure Rules 2005 (NSW), rr 15.3, 15.4Cases Cited: ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Barton v Official Receiver (1986) 161 CLR 75; [1986] HCA 44
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Cannane v J Cannane Pty Ltd (in liq) (1998) 192 CLR 557; [1998] HCA 26
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; [1995] HCA 68
Marcolongo v Chen (2011) 242 CLR 546; [2011] HCA 3
Ostrowski v Palmer (2008) 218 CLR 493; [2008] HCA 30
Payne v Parker [1976] 1 NSWLR 191
Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2014] NSWCA 440
Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5
Saba v Plumb [2017] NSWSC 622
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35Category: Principal judgment Parties: Anthony Michael Saba (Appellant)
Noel Plumb (First Respondent)
Jeanette Minifie (Second Respondent)Representation: Counsel:
Solicitors:
C R C Newlinds SC / S Jeliba (Appellant)
P R Glissan (First Respondent)
C Alexander (Second Respondent)
Fraser Clancy Lawyers (Appellant)
Lexes Lawyers (Second Respondent)
File Number(s): CA 2017/173625 Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Equity – Real Property List
- Citation:
- [2017] NSWSC 622
- Date of Decision:
- 19 May 2017
- Before:
- Black J
- File Number(s):
- SC 2016/110233
HEADNOTE
[This headnote is not to be read as part of the judgment]
In 2005 the respondents, Mr Noel Plumb and Ms Jeanette Minifie, purchased a property in which they subsequently lived in a de facto relationship. They held the title to the property as tenants in common.
In 2011 there was a confrontation between Mr Plumb and…
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- AGLC
- Saba v Plumb [2018] NSWCA 60
- Case
- [2018] NSWCA 60
- Decision Date
CaseChat Overview and Summary
Saba (appellant) sought to set aside a transfer of property from Plumb (first respondent) to Plumb and another (second respondent), alleging the transfer was made with intent to defraud the appellant. The dispute arose following property settlement orders made by the Family Court of Australia, which had also resulted in indemnity costs being awarded against the first respondent in favour of the appellant after apprehended violence order proceedings were dismissed. The appeal was heard by Macfarlan JA, Sackville AJA, and Emmett AJA.
The primary legal issues before the court were whether the first respondent intended to defraud the appellant by transferring his interest in the property, and whether the second respondent was a purchaser in good faith without notice of any such fraudulent intent. The court was required to consider the application of s 37A of the *Conveyancing Act 1919* (NSW) and the principles established in *Marcolongo v Chen* (2011) 242 CLR 546.
The court found that the appellant had not established the necessary intent to defraud on the part of the first respondent. The reasoning focused on the evidence presented, particularly in relation to the timing and circumstances of the property transfer in the context of the Family Court orders and the prior apprehended violence order proceedings. The court concluded that the appellant failed to discharge the onus of proof required to establish a fraudulent disposition under s 37A of the *Conveyancing Act 1919* (NSW). Consequently, the appeal was dismissed.
The primary legal issues before the court were whether the first respondent intended to defraud the appellant by transferring his interest in the property, and whether the second respondent was a purchaser in good faith without notice of any such fraudulent intent. The court was required to consider the application of s 37A of the *Conveyancing Act 1919* (NSW) and the principles established in *Marcolongo v Chen* (2011) 242 CLR 546.
The court found that the appellant had not established the necessary intent to defraud on the part of the first respondent. The reasoning focused on the evidence presented, particularly in relation to the timing and circumstances of the property transfer in the context of the Family Court orders and the prior apprehended violence order proceedings. The court concluded that the appellant failed to discharge the onus of proof required to establish a fraudulent disposition under s 37A of the *Conveyancing Act 1919* (NSW). Consequently, the appeal was dismissed.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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