Saba v Plumb

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.