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…

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.

Continue reading Singh v Kaur BAL [No 2]

Details

AGLC: Singh v Kaur BAL [No 2] [2010] WASC 69
Case: [2010] WASC 69
Decision Date: 22 MARCH 2010

CaseChat Overview and Summary

The parties in this case were Singh, the plaintiff, and Kaur, the defendant. The dispute related to a claim for a declaration that a transfer of property was an alienation of the plaintiff's property with the intention to defraud. The case was heard in the Federal Circuit Court of Australia. The plaintiff alleged that the defendant transferred property overseas with the intention of defrauding him. The plaintiff sought a declaration that the transfer was an alienation of property with the intention to defraud, as well as an order for the return of the property or its value.

The court was required to decide whether it had jurisdiction to deal with the claim concerning an overseas property and whether the inference of the intention to defraud could be drawn from the transfer of property between close family members. The court found that it had jurisdiction to hear the case and that the inference of the intention to defraud could be drawn from the transfer of property between close family members. The court held that the transfer of property between close family members could be an indication of the intention to defraud, particularly where the transfer occurred in the context of a family dispute.

The court granted the plaintiff's application for judgment in default of defence and by way of summary judgment. The court found that the plaintiff was entitled to the declaration that the transfer of property was an alienation of property with the intention to defraud. The court ordered that the defendant return the property or its value to the plaintiff. The court also ordered that the defendant pay the plaintiff's costs of the application.

Orders