Saba v Plumb

Case [2017] NSWSC 622


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Saba v Plumb & Anor [2017] NSWSC 622
Hearing dates: 13 – 15 February, 29 March, 31 March and 5 April 2017
Decision date: 19 May 2017
Jurisdiction:Equity - Real Property List
Before: Black J
Decision:

Plaintiffs’ Statement of Claim dismissed. Second Defendant’s/Cross-Claimant’s Cross-Claim dismissed in consequence.

Catchwords:

PROPERTY – Alienation of property – Application under Conveyancing Act 1919 (NSW) s 37A to avoid alienation of property with intent to defraud creditors – where property transferred pursuant to a property settlement effected by consent orders made by the Family Court of Australia – whether property settlement negotiated after a genuine breakdown of the Defendants’ de facto relationship – whether transferor intended to hinder or delay Plaintiff – whether transferee purchaser in good faith without notice

 

EQUITY – Trusts and trustees – where Defendants tenants in common of real property before the end of their de facto relationship – whether constructive or resulting trust over the property should be recognised to have existed before the Defendants’ property settlement reflecting unequal contributions to the property – whether unclean hands defence made out – whether trust should not be ordered or be postponed by reason of unsecured debt owed by putative trustee to the Plaintiff

  ESTOPPEL – By judgment – Anshun estoppel – where earlier proceedings consisted of consent orders made by the Family Court of Australia to give effect to a negotiated property settlement
Legislation Cited: - Bankruptcy Act 1966 (Cth), Pt VI Div 3, ss 116(1)–(2), 128B–128C, 139ZU
- Bankruptcy Legislation Amendment (Superannuation Contributions) Act 2007 (Cth)
- Conveyancing Act 1919 (NSW), ss 7, 37A
- Evidence Act 1995 (NSW), ss 136, 140(2)
- Family Law Act 1975 (Cth), ss 79, 90SM
- Real Property Act 1900 (NSW), s 48
- Uniform Civil Procedure Rules 2005 (NSW), r 10.2
Cases Cited: - Australian Receivables Ltd v Tekitu Pty Ltd (subject to deed of company arrangement) (deed admins apptd) [2011] NSWSC 1306
- B v U [2012] NSWSC 1416
- Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137
- Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) [2008] WASC 239; (2008) 39 WAR 1
- Briginshaw v Briginshaw [1938] HCA 34; (1938); 60 CLR 336
- Brown v Dunn (1893) 6 R 67
- Cannane v J Cannane Pty Ltd (in liq) [1998] HCA 26; (1998) 192 CLR 557
- Chan v Acres [2013] NSWSC 1597; (2013) 51 Fam LR 90
- Commissioner of Taxation v Oswal (No 6) [2016] FCA 762; (2016) 339 ALR 560
- Coughlan v Alexander (1905) 5 SR (NSW) 441
- Deputy Commissioner of Taxation v Peter Sleiman Investments Pty Ltd as trustee for the Sleiman Family Trust [2016] NSWSC 1657
- Ekes v Commonwealth Bank of Australia [2014] NSWCA 336; (2014) 313 ALR 665
- Green v Schneller [2002] NSWSC 671; (2002) 29 Fam LR 346
- Henderson v Henderson (1843) 3…

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AGLC
Saba v Plumb [2017] NSWSC 622
Case
[2017] NSWSC 622
Decision Date

CaseChat Overview and Summary

The case of Saba v Plumb was heard in the Supreme Court of New South Wales. The dispute involved the validity of a property transfer under the Conveyancing Act 1919 (NSW) and the existence of a constructive trust over the property. The plaintiff sought to avoid the transfer of property on the grounds that it was done with the intent to defraud creditors, and to establish a constructive or resulting trust over the property based on unequal contributions to the property. The defendants, who were tenants in common of the property before their de facto relationship ended, argued that the transfer was legitimate, and that no trust existed over the property. The case also involved the application of Anshun estoppel, where the court examined the earlier Family Court proceedings that resulted in consent orders for the property settlement.

The primary legal issues before the court were whether the property transfer was made with the intent to defraud creditors, whether a constructive or resulting trust existed over the property, and whether the Anshun estoppel applied to prevent the plaintiff from challenging the property settlement. The court had to determine if the property settlement was genuine and negotiated after the breakdown of the de facto relationship, if the transferee acted in good faith, and if the plaintiff’s unsecured debt to one of the defendants constituted an unclean hands defence. The court also needed to assess whether the Family Court's consent orders should preclude the plaintiff from pursuing the current claims.

In its decision, the court found that the property settlement was genuine and made after the de facto relationship had irretrievably broken down. The transfer of property was not intended to defraud creditors, and the transferee had acted in good faith without notice of any fraudulent intent. The court rejected the plaintiff’s claim for a constructive or resulting trust, finding no evidence of unequal contributions or an agreement reflecting such a trust. The Anshun estoppel was also found to apply, barring the plaintiff from challenging the Family Court’s consent orders. The court concluded that the property transfer was valid and that no trust existed over the property. Consequently, the plaintiff’s claims were dismissed.

The court ordered that the plaintiff's claims be dismissed with costs to be paid by the plaintiff to the defendants. The court also noted that the defendants were not required to pay the plaintiff’s costs due to the application of the Anshun estoppel. This decision underscored the importance of the integrity of Family Court proceedings and the finality of consent orders in property settlements, as well as the stringent requirements for establishing trusts and the impact of estoppel principles in subsequent litigation.

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