Singh v Kaur BAL [No 2] - [2010] WASC 69

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SINGH -v- KAUR BAL [No 2] [2010] WASC 69

CORAM: HASLUCK J

HEARD: 22 MARCH 2010

DELIVERED : 22 MARCH 2010

FILE NO/S: CIV 1264 of 2006

BETWEEN: SARDUL SINGH
Plaintiff
AND
TEESHALDIP KAUR BAL
First Defendant
MAN MAHAN SINGH
Second Defendant
SATWANT KAUR
Third Defendant

Catchwords:

Property law - Practice and procedure - Plaintiff seeks declaration that transfer of property was an alienation of property with intention to defraud - Jurisdictional issue as to whether the court has jurisdiction to deal with a claim concerning an overseas property - Inference of intention to defraud arising from transfer of property between close family members - Finding that plaintiff is entitled to judgment in default of defence and by way of summary judgment

Legislation:

Property Law Act 1969 (WA), s 89
Rules of the Supreme Court 1970 (WA), O 14 r 1, O 22 r 1, O 22 r 2

Result:

Order for summary judgment in default of defence

Category: B

Representation:

Counsel:

Plaintiff:     Mr E Carlose
First Defendant             :     In person
Second Defendant         :     In person
Third Defendant           :     In person

Solicitors:

Plaintiff:     Eapon Carlose
First Defendant             :     In person
Second Defendant         :     In person
Third Defendant           :     In person

Case(s) referred to in judgment(s):

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
First Industry Corp v Goh [2002] WASC 111
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) [1976] WAR 109
Muschinski v Dodds (1985) 160 CLR 583
Singh v Singh [2009] WASCA 53

HASLUCK J:

Introduction

The plaintiff in this action, Sardul Singh, seeks to have declared void pursuant to s 89 of the Property Law Act 1969 (WA) an alienation by the second defendant of property in Malaysia which was made for the benefit of the first and third defendants. Other orders are sought which I will describe more fully later.
The second defendant is the plaintiff's brother. The second defendant is the husband of the third defendant and the father of the first defendant. It will therefore be convenient for ease of exposition, if necessary, to refer to the latter defendants as the second defendant's wife and daughter.
It appears from the plaintiff's statement of claim and the other materials before me that the plaintiff and the second defendant were involved in a restaurant business venture that led to a dispute between them. In the end, a certain debt referable to the business venture was assigned to the plaintiff. This in turn led to the plaintiff obtaining a judgment against his brother in the District Court (CIV 5 of 2002) in the sum of $173,349 plus costs in July 2005.
The plaintiff alleged that his brother, the second defendant, then took steps to divest himself of various assets which led eventually to his bankruptcy on 14 February 2006. The writ of summons in this matter was issued a month later on 22 March 2006.

The plaintiff's claim

It is said by the plaintiff in his statement of claim that the second defendant and his wife were the owners of a property at 15 Geoff Russell Avenue, Kinross, described in the papers before me as the 'residence'. The second defendant was also the registered proprietor of the Malaysian or so‑called 'No 2 property' (as it is described in the plaintiff's outline of submissions).
The plaintiff alleges that in or about July 2003 the second defendant and his wife transferred the whole of their interest in the residence to their daughter. In September 2003 the second defendant transferred his interest in the Malaysian or No 2 property to his wife and daughter; that is, the third and first defendants.
The plaintiff alleges at par 13 of the amended statement of claim that in effecting the transfer of the No 2 Malaysian property, the second defendant did so with the purpose and/or intent to defraud his creditors within the meaning of s 89(1) of the Property Law Act 1969 and his wife and daughter as transferees had notice of the purpose and participated in the disposal.
It is against this background that the plaintiff seeks essentially a declaration that the transfer of the second defendant's interest in the No 2 or Malaysian property was an alienation of property with intent to defraud and consequential orders.
The claim for summary relief is supported by various affidavits, including principally the affidavit of the plaintiff sworn 1 September 2009 which contains a summary history of the matter. The plaintiff also gave oral evidence at the hearing.
I note in passing that I have before me also the plaintiff's outline of submissions in support of his application for judgment in default of defence dated 19 March 2010. This refers to the history of the matter and contains a summary of decided cases bearing upon the legal issues. I will come back to some of the decided cases and the issues in due course.

Procedural history

There has been a complicated procedural history concerning this matter. It is not necessary for present purposes to traverse the full details in that regard. Importantly, on appeal from a decision of Master Sanderson, a ruling was made by the Court of Appeal in respect of this matter that the Supreme Court of Western Australia may exercise jurisdiction in respect of a person within the jurisdiction who owes a personal obligation capable of being enforced in the jurisdiction providing that no adjudication touching on the laws of another nation is directly involved. Further, where foreign land is the subject of a trust, the court has jurisdiction to compel a trustee to fulfil his obligations under the trust: see Singh v Singh [2009] WASCA 53.
I pause here to say that, in my view, it will be useful to refer to several passages in the judgment of Pullin JA who wrote the principal judgment in the Court of Appeal's decision in Singh. The judgment in question was handed down on 26 February 2009 and, as is customary, in the case of a striking out application, proceeded from the assumption that the facts alleged could be made out. His Honour made these observations:
The right of a person prejudiced by a fraudulent disposition of property to avoid the disposition existed before the Elizabethan statute also conferring this right was created and equity would have decreed in personam remedies in support even if the property was out of the jurisdiction. Section 89 of the Property Law Act 1969 reproduces the substance of the Elizabethan statute and the Elizabethan statute is referred to in the explanatory memorandum. The Western Australian Parliament must be taken to have known of the equitable jurisdiction of its courts to make decrees to deal with fraudulent dealing of foreign immovable property by a person within the jurisdiction and it is therefore clearly arguable that it must have intended to legislate to confer the right on a person prejudiced by an alienation of foreign immovable property with intent to defraud creditors to avoid such a disposition. [32]
At a later stage his Honour went on to make these observations:
In this case, it is alleged that the appellant's wife and daughter became registered as proprietors of the Malaysian property by fraud. Whether that is so will have to be decided at trial.
As the Master correctly noted, this is an application which requires the assumption to be made that the allegations in the statement of claim can be made out. Whether in fact they are made out, will require evidence to be adduced and a decision then made. It is only necessary to say that based on the statement of claim, it is arguable that there was actual fraud.
As a result it is arguable that there is nothing in Malaysian law which would prevent the claimed decrees of the Western Australian Court being enforced in Malaysia if that became necessary. [47] ‑ [49]
At a later stage in his judgment, Pullin JA made these further observations:
In this case, the alleged execution of the transfer in Western Australia by the appellant and his wife and daughter and the subsequent lodgement of the transfer at the Titles Office in Malaysia were the steps which amounted to the alienation of the Malaysian property by the appellant to his wife and daughter. The fact that an official in the Titles Office recorded the transfer on the title does not detract from that conclusion. [60]
Also in the judgment of Pullin JA there are certain pertinent observations:
It may be inferred that by conferring a right on a person to avoid a fraudulent alienation of property, Parliament intended that right to be conferred in a way which would correspond with the right a person had under the Elizabethan statute and under the common law before that. That right extended to immovable property out of the jurisdiction.
The reasons above lead to the conclusion that it is clearly arguable that the court has jurisdiction to deal with the respondent's claims and that the Master was correct to so hold. [76], [77]
It emerges then, that in the view of the Court of Appeal, the Supreme Court of Western Australia has jurisdiction to deal with this matter, provided the plaintiff's claims can be substantiated. I will proceed accordingly. However, I must be careful to note that the question of whether the court has power to make orders of the kind sought in the plaintiff's amended prayer for relief must be distinguished from the evidentiary question as to whether there is sufficient evidence or procedural reasons to justify a grant of summary relief as proposed by the plaintiff.

The defendants' stance

The defendants have entered a conditional appearance but have not filed a statement of defence in this matter. It follows from earlier discussion that the stance of the defendants has been to deny that the Supreme Court in this State has jurisdiction to deal with a claim concerning an overseas property, being immovable property situated in Malaysia.
In the course of the hearing before me counsel for the plaintiff handed up a certificate under O 67 r 10 of the Rules of the Supreme Court to the effect that the Registrar has searched the entry in the cause book relating to this action and ascertained that no defence has been filed by the defendants. The certificate in question is dated 22 March 2010.
The defendants sought to have the plaintiff's claim struck out, or stayed, upon the basis that there was an absence of jurisdiction, but the Court of Appeal ruled against them. Counsel for the plaintiff submitted that the consequence of the Court of Appeal's ruling was that the conditional appearance previously entered on behalf of the defendants should now be regarded as an unconditional appearance. This meant that there was then an obligation to file a statement of defence, being an obligation that the defendants failed to perform.

The application for summary relief

After a period of delay (apparently referable to the appeal and related procedural complexities) the plaintiff, by a chamber summons dated 24 June 2009, applied for certain orders including that the plaintiff be at liberty to amend his prayer for relief in the statement of claim and to enter judgment in default of defence.
The application was brought on for hearing before me on 12 October 2009 on which occasion the plaintiff was represented by his counsel Mr Carlose. On that occasion there was no appearance for the defendants. Orders were made for the statement of claim to be amended and for service of various documents upon the defendants pursuant to an order for substituted service. The plaintiff was granted leave to have the matter relisted for hearing.
I note in passing that the amendments to the statement of claim in question have been made and affidavits of service have been placed before me at this hearing demonstrating that there has been a compliance with the orders made on 12 October 2009.
There has been no indication by the defendants, in the manner contemplated by the previous orders or otherwise, that they wish to be heard, and nor has there been any appearance by or on behalf of the defendants at the hearing. This may well be due to the fact that the defendants, pursuant to legal advice, do not wish to submit to the jurisdiction of the court, as this may have a bearing upon enforcement proceedings to be taken at some later stage.
It does not lie with me to speculate about such issues. The fact of the matter is that the defendants have been given due notice of this hearing, they have been afforded an opportunity to file any documents they might wish to rely upon, they have been afforded an opportunity to be heard, but they have not appeared before the court at the listed hearing. They have not filed and served a statement of defence in compliance with O 22 r 1 of the Rules of the Supreme Court 1970 (WA).

Affidavits and orders

I have before me various affidavits directed to substantiating the facts and matters underlying the plaintiff's claim and his amended prayer for relief. I will come to the principal affidavit in that regard later. Put shortly, in addition to seeking the declarations mentioned previously concerning the alleged intent to defraud, the plaintiff seeks orders that the transfer of the No 2 Malaysian property is void as against the plaintiff and that the first and third defendants hold the subject property as constructive trustees for the plaintiff.
Provision is made also for the execution of transfer documents which will enable the plaintiff to sell the said property and apply the proceeds in satisfaction of the alleged judgment debt of $173,349 to the intent that the plaintiff will then account to the first and third defendants for the net balance remaining if any.
More particularly, the declarations and orders sought by the plaintiff are set out in the amended statement of claim date stamped 13 October 2009.
The plaintiff seeks the following declarations and orders:
(a)The transfer of the second defendant's interest in the property at No 2 Jalan Lim Swee Aun, Birch Village 34000, Taiping, Perak, Malaysia, erected on lot number 1257, Mukim of Tupai, District of Larut, Perak, Malaysia, held under GM 632 to the first and third defendants in September 2003 was an alienation of property by the second defendant with intent to defraud his creditors within the meaning of s 89(1) of the Property Law Act 1969.
(b)The first and third defendants had, at the time of the alienation, notice of the second defendant's intent to defraud the plaintiff within the meaning of s 89(3) of the Property Law Act 1969.
(c)The said transfer is void as against the plaintiff.
(d)The first and third defendants as constructive trustees held and hold the whole of the said property on trust for the plaintiff.
(e)The first and third defendants are liable to account to the plaintiff for all sums, if any, owing on a mortgage on the said property and loaned after September 2003.
(f)The first and third defendants provide the plaintiff with a statement of account from the mortgagee of moneys owing on a mortgage, if any, on the said property at the time it was transferred to the first and third defendants, and any moneys thereafter loaned from or paid to the mortgagee.
(g)The first defendant and/or third defendant do within 21 days from the date hereof pay the plaintiff or the said mortgagee all moneys owing on a mortgage, if any and loaned after September 2003 to enable the mortgage to be discharged.
(h)Upon receipt from the plaintiff's solicitors of:
i)A transfer document conveying to the plaintiff absolutely the said property and/or
ii)An irrevocable power of attorney in favour of the plaintiff or his nominee in Taiping, Perak, Malaysia authorising the plaintiff or his nominee to discharge any mortgage, remove any encumbrance, give any occupant the requisite notice to vacate the premises, and sell the said property.
the first and third defendants execute, in the presence of a duly authorised staff of the Malaysian Consulate in Perth, the said document or documents, and return the same, together with the duplicate certificate of title to the plaintiff's solicitors within seven days of receipt of the document or documents from the plaintiff's solicitor.
(i)The plaintiff be at liberty to sell the said property by private treaty or public auction and apply the net proceeds thereof in satisfaction or partial satisfaction of the sum of $173,349 plus interest and costs payable pursuant to the judgment obtained in CIV 5 of 2002 and all costs herein ordered to be paid by the defendants.
(j)The plaintiff account to the first and third defendants for all sums received by him from the sale of the said property and pay them the net balance remaining if any.
(k)The defendants:
(a)do all other things and execute all other documents appropriate and necessary to give effect to the declarations/order herein, and
(b)are hereby restrained from doing anything that will impede or hinder the property being made available to the plaintiff for the aforesaid purposes.
(l)The costs of this action including any reserve costs, to be paid by the defendants to the plaintiff.
(m)The plaintiff be at liberty to apply for further orders, if appropriate and necessary.
It is against this background that I now turn to certain legal principles bearing upon the relief sought.

Legal principles

Section 89(1) of the Property Law Act provides that except as provided in this section, every alienation of property made, whether before or after the coming into operation of this Act, with intent to defraud creditors is voidable, at the instance of any person thereby prejudiced.
By s 89(3) this section does not extend to any estate or interest alienated for valuable consideration and in good faith to any person not having, at the time of the alienation, notice of the intent to defraud creditors.
There is a substantial body of law bearing upon statutory provisions of this kind. A convenient starting point which deals with the matter in overview is to be found in Lewis: Australian Bankruptcy Law (4th ed) 45 and I quote:
The general principle may be stated that any dealing with property other than a sale for a reasonable price made with the object of putting it beyond the reach of present or future creditors comes within the definition of a fraudulent conveyance if the person concerned cannot immediately pay his debts or anticipates some event which may render him unable to pay his debts in future. Such a dealing will be treated as fraudulent irrespective of the presence or absence of a conscious fraudulent intent on the part of the debtor if the necessary result of the dealing is to put the property beyond the reach of his creditors. Typical examples are transfers of property to the debtor's wife, transfers to a trustee to hold for the debtor and transfers to one or a group of creditors to stave off threatened action. The word fraudulent indeed has received an interpretation in bankruptcy matters somewhat wider than its ordinary use and it may be defined as equivalent to "with an intention to deprive creditors of recourse against all or any of his assets."
More recent authorities include the decision of this court in First Industry Corp v Goh [2002] WASC 111. It emerges from that case that an intention to defraud is satisfied by an intention to put the property beyond the reach of creditors and includes an intention to defeat, hinder or delay the process of making the property available for division among creditors. The intent can be inferred from a consideration of all the circumstances. The fact that the necessary effect of the transaction puts the property beyond reach of a creditor coupled with the fact that the transferee and transferors are closely related raises serious doubts as to the transaction being in good faith and makes it easier to infer the latter had notice of the nature of the transaction.

More particularly, Pullin J made these observations in the First Industry case:
Section 89 is not to be narrowly construed: Langdon v Gruber [2001] NSWSC 276 at 52. An intention to defraud is satisfied by an intention to put the property beyond the reach of creditors, and includes an intention to defeat, hinder or delay, the process of making the property available for division among creditors: Electrical Enterprises Retail Pty Ltd v Rodgers (1988) 15 NSWLR 473 at 479 and PT Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515 at 525. In the absence of direct proof of intention to defeat creditors, such intent may be inferred from all the circumstances, including the transferor's aims, the objective background circumstances existing at the time, and the consequences of the transfer: Cannane v J Cannane Pty Ltd (in liq) (1998) 192 CLR 557 at [12], [31] and [92]. It is not necessary to make a finding of "dishonesty" or "deceit", to be able to conclude that there was relevantly an intention to defraud creditors on the part of the alienator: Cannane (supra) at 96. Where a transfer of property is made without valuable consideration in circumstances where the transferor was experiencing financial difficulties, a heavy evidentiary onus is cast on any party seeking to rebut the inference that the transfer was made with an intention to defraud creditors: PT Garuda (supra) at 524 and Cannane (supra) at 12. [30]
His Honour Pullin J went on to say:
Alienations may fall within the section although there existed no creditors at the date of alienation, so long as the intent to defeat future creditors be made out and providing it is established that the alienator was aware of impending liability to creditors : Barton v Deputy Commissioner of Taxation (Cth) (1974) 131 CLR 370 at 374 and PT Garuda (supra) at 525-6. It may be difficult, or impossible, to infer the existence of such an intention if the alienator was solvent at the time the transaction occurred. Williams v Lloyd (1934) 50 CLR 341 at 372-378.
An intent to defraud creditors need not be the sole intention or motivation behind the transfers: Barton v Deputy Commissioner of Taxation (Cth) (supra), PTGaruda (supra) at 526-7 and Cannane (supra)at 593. [31], [32]
It emerges from the decided cases, and especially Cannane's case, that if it appears from evidence of all the circumstances that the transfer might be expected to have a defrauding effect, and has had that effect, then the court will attribute fraudulent intention to the debtor. Involvement of members of a debtor's family and close relatives in the alienation of his assets raises an inference that alienations are fraudulently effected.
It appears from the First Industry case that if the plaintiff succeeds in securing a declaration that the alienation was void then he would be entitled to consequential relief including an order that the property be held in trust for him.
In Muschinski v Dodds (1985) 160 CLR 583 Deane J observed at 613 that a constructive trust can properly be described as a remedial institution which equity imposes to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principles.
I must now turn to the Rules of the Supreme Court bearing upon summary relief in circumstances of the kind I have described.

Summary relief

It is said in O 22 r 2 of the Supreme Court Rules that where the plaintiff's claim is against a defendant for a liquidated demand only, then if that defendant fails to serve a defence, the plaintiff may, after the expiration of the period fixed by or under these rules for service of the defence, enter final judgment against that defendant for a sum not exceeding that claim by the writ in respect of the demand and for costs and proceed with the action against the other defendants, if any. There are related provisions in O 22 concerning mixed claims and other forms of claim.
The plaintiff relies also, in the alternative, upon the provisions concerning summary judgment where a defendant who has entered an appearance is found to have no defence to a claim. Order 14 r 1 provides that where in an action a statement of claim has been served on a defendant and that defendant has entered an appearance the plaintiff may on the ground that that defendant has no defence to a claim apply to the court for judgment against that defendant.
There are various authorities bearing upon the summary judgment process. It is not necessary to traverse them in their entirety but it is important to keep steadily in mind what was said by the High Court in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99, namely, that the power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried. Nonetheless, it is necessary for the defence to show that there is a triable case or that there is a question to be investigated. See Moscow Narodny Bank Ltd v Mosbert Finance (Aust) [1976] WAR 109.
The affidavits in support of an application for summary judgment must verify the essential elements of the cause of action upon which the application is based. The applicant for summary judgment assumes the burden of persuading the court that the claim made is a good one, and that there is no defence to it, that leave to defend should not therefore be granted, and the judgment should be given for the plaintiff.
Against the background of these various legal principles let me now return to the circumstances of this case.

The present case

As I noted in earlier discussion, the affidavit principally relied upon by the plaintiff is his own affidavit sworn 1 September 2009. In that affidavit the plaintiff describes the nature of his relationship to the defendants. He describes the District Court action that gave rise to a judgment debt of $173,349 plus interest and costs in the plaintiff's favour.
The plaintiff goes on to say at par 5 of the affidavit that the first and third defendants were present in court during the trial of the action in the District Court (CIV 5 of 2002) and were aware at all material times prior to the transfer of the No 2 or Malaysian property that the plaintiff was a creditor of the second defendant. It is said further that some time shortly after January 2002 the first defendant (that is; the second defendant's daughter) approached the plaintiff and made inquiries about the District Court claim in CIV 5 of 2002.
It is said in the plaintiff's affidavit that the second defendant migrated from Malaysia to Perth in late 1999 on a business skills visa. His entry into Australia was conditional upon him carrying on the restaurant business, which is named, at Murray Street, Perth.
It is said that soon after migrating the second defendant and the third defendant purchased the property in Kinross described as the residence. It was occupied with the first defendant and their other two children as their family home. It is said that the second defendant carried on the restaurant business but later ceased all involvement with it and commenced active involvement with the day‑to‑day operations of another restaurant business in Leederville.
It is said in the affidavit that in August 2001 the 'first' defendant had in his name certain properties and assets, being the residence, the No 2 Malaysian property and his shares in a certain company. These properties and assets were virtually all, if not all, of the 'first' defendant's properties and assets.
I pause there to say that it is clear from the context that in this passage, although the word 'first' has been used, the plaintiff means the second defendant. I will therefore read the passage and later passages in accordance with that meaning.
It is said further that, after commencement of the District Court action, the following disposals or alienations of properties were effected; in or about July 2003 the second and third defendants transferred their interest in the residence to the first defendant; in or about September 2003 the second defendant transferred his interest in the No 2 Malaysian property to the first and third defendants; in or about September 2004 disposed of his shares in the company I mentioned a moment ago to the third defendant's sister and to a co‑shareholder and director of the company. Documents are exhibited to the affidavit verifying these matters.
It is said in par 10 of the plaintiff's affidavit that the second and third defendants continued to occupy the residence after the transfer to the first defendant. Their address for service of documents in these proceedings and proceedings remain the address of the residence. Further, the first defendant filed an affidavit in CIV 1009 of 2005 deposing to the fact that the transfer of the residence to her was made after discussion that she had with her parents.
It is said that in the course of that discussion the first defendant was told by her father that he had accumulated substantial debts and wished to sell the residence to help pay from the proceeds of sale a large portion of the debts. It is said the second defendant continued his involvement in the restaurant mentioned earlier after transferring his shares in the company. His only source of income was said to be that from the restaurant business.
It is said that in the course of the application to dismiss these proceedings the defendants conceded that the transfer document in relation to the No 2 Malaysian property was executed in Perth in the presence of staff of the Malaysian consulate here.
It is said that the second defendant from the outset and during the six‑day trial of the action in the District Court, CIV 5 of 2002, strenuously denied owing the plaintiff the sum claimed or any part thereof and has to date refused to pay the said sum or any part thereof.
It is said in par 15 that there is no doubt in the plaintiff's mind, first, that the second defendant as transferor engaged in the conduct referred to in par 9 with the purpose and intent to defeat, hinder or delay the recovery of the claim in the District Court action CIV 5 of 2002 by putting the said properties and assets beyond his reach as creditor and judgment creditor; second, that the first and third defendants in engaging the conduct referred to in par 9(b) of the affidavit as transferees were aware of and shared the second defendant's fraudulent purpose and intent and did not give any or valuable or good consideration; third, that the first defendant in engaging in the conduct referred to in par 9(a) of the affidavit as transferee was aware of and shared the second defendant's fraudulent purpose and intent and did not give any or valuable or good consideration; fourth, that the third defendant in engaging the conduct referred to in par 9 hereof as transferor was aware of and shared the second defendant's fraudulent purpose and intent and did not give any or valuable or good consideration.
I pause here to say that in the course of giving oral evidence at the hearing before me, the plaintiff has confirmed the circumstances and the facts and matters described in his affidavit. Importantly, bearing in mind that the affidavit was sworn some months ago, he has confirmed in the course of his evidence that the debt complained of, namely, the debt of $173,349, has still not been paid, and nor has any part of it been paid.
The plaintiff gave evidence that as at the date of the hearing in March 2010, notwithstanding the transactions referred to earlier, the second defendant and his wife, the third defendant, continue to reside in the Kinross property described as the 'residence' and do so notwithstanding that their daughter, the first defendant, is no longer at that residence. The plaintiff said in evidence that he does not believe that any of the defendants have a defence to the action. In his belief they do not have a defence to the claim or to any part of it.
It is against this background that counsel for the plaintiff submitted that the orders set out in the prayer for relief of the amended statement of claim as I described them earlier should be made.

Conclusion

As I draw all these facts and matters together, it does seem to me that I must give particular weight to the chronology and other circumstances described in the plaintiff's affidavit and to the fact that there is a close family relationship between the second defendant and the other defendants. It may be inferred from this and from the other circumstances that there was an awareness by the defendants that the purpose of the transaction was to have the defrauding effect complained of. It can be inferred also that the transaction did in fact have the effect of there being a disposition which resulted in a creditor such as the plaintiff being deprived of the subject property.
I am prepared to accept, having regard to the contents of the affidavit and the factual matters set out in the pleaded case, that the wife and daughter were aware, early in 2003, and well before the transfer of the No 2 Malaysian property, that the second defendant had substantial debts, including the subject judgment debt of $173,349 to the plaintiff. Further, I am satisfied, that, in any event, having regard to the alienation of the second defendant's property, particularly the transfer of the second defendant's and wife's interest in the family home to the daughter, it is inconceivable that the wife and daughter were unaware of the second defendant's insolvency and his fraudulent intention.
Accordingly, having regard to the statutory provisions and legal principles mentioned earlier, I am satisfied that the plaintiff is entitled to judgment and relief of the kind described earlier, being the orders set out in the prayer for relief in the amended statement of claim. I will make the orders sought accordingly on the ground that the plaintiff is entitled to judgment in default of defence and, in any event, by way of summary judgment pursuant to O 14 r 1 of the Supreme Court Rules.