Smith v Edward - [2006] NFSC 11

SUPREME COURT OF NORFOLK ISLAND
Smith v Edward [2006] NFSC 11
PROPERTY - Failure to satisfy judgment debt - whether the Fraudulent Conveyances Act 1571 (13 Eliz 1.c.5) applies to Norfolk Island - whether conveyance of land be set aside - valuable consideration - intention of defeating creditors.
Fraudulent Conveyances Act 1571 (13 Eliz 1.c.5)
Judicature Act 1960 (NI) s 3
Norfolk Island Act 1979 (Cth) s 16
Norfolk Island Act 1957 (Cth) ss 12, 13
Norfolk Island Act 1913 (Cth) s 4
Barlin v Bishop (1860)29 BEAV 417; 54 ER 689 Considered
Commonwealth Bank of Australia v Buffett (1993) 114 ALR 245 Cited
Noakes v J Harvey Holmes and Son (1979) 37 FLR 5 Cited
PATRICK THOMAS SMITH v JOHN GEORGE EDWARD, ADMINISTRATION OF NORFOLK ISLAND AND COLIN FRANCIS EDWARD
SC 7 OF 2004
LORRAINE RUTH SMITH v JOHN GEORGE EDWARD, ADMINISTRATION OF NORFOLK ISLAND AND COLIN FRANCIS EDWARD
SC 8 OF 2004
ANDREA LEANNE SMITH v JOHN GEORGE EDWARD, ADMINISTRATION OF NORFOLK ISLAND AND COLIN FRANCIS EDWARD
SC 9 OF 2004
KIEFEL J
8 DECEMBER 2006
BRISBANE

IN THE SUPREME COURT

OF NORFOLK ISLAND

SC 7 OF 2004

BETWEEN:

PATRICK THOMAS SMITH
Plaintiff

AND:

JOHN GEORGE EDWARD
First Defendant

ADMINISTRATION OF NORFOLK ISLAND
Second Defendant

COLIN FRANCIS EDWARD
Third Defendant

JUDGE:

KIEFEL J

DATE OF ORDER:

8 DECEMBER 2006

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.Colin Francis Edward be joined as third defendant to each of the three proceedings SC 7, 8 and 9 of 2004.

2.The conveyance of Portion 52K on Norfolk Island and the life interest created on 19 September 2003 recorded in Absolute Sale or Conveyance 1408 be set aside.

3.The first and third defendants do all things necessary to make the property in Portion 52K available for the satisfaction of the judgments in favour of the plaintiff in each of the three actions SC 7, 8 and 9 of 2004.

4.The first and third defendants pay each of the plaintiff’s costs of and incidental to the proceedings, including any reserved costs.

IN THE SUPREME COURT

OF NORFOLK ISLAND

SC 8 OF 2004

BETWEEN:

LORRAINE RUTH SMITH
Plaintiff

AND:

JOHN GEORGE EDWARD
First Defendant

ADMINISTRATION OF NORFOLK ISLAND
Second Defendant

COLIN FRANCIS EDWARD
Third Defendant

JUDGE:

KIEFEL J

DATE OF ORDER:

8 DECEMBER 2006

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1Colin Francis Edward be joined as third defendant to each of the three proceedings SC 7, 8 and 9 of 2004.

2.The conveyance of Portion 52K on Norfolk Island and the life interest created on 19 September 2003 recorded in Absolute Sale or Conveyance 1408 be set aside.

3.The first and third defendants do all things necessary to make the property in Portion 52K available for the satisfaction of the judgments in favour of the plaintiff in each of the three actions SC 7, 8 and 9 of 2004.

4.The first and third defendants pay each of the plaintiff’s costs of and incidental to the proceedings, including any reserved costs.

IN THE SUPREME…

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 Smith v Edward

Details

AGLC: Smith v Edward [2006] NFSC 11
Case: [2006] NFSC 11
Decision Date: 8 DECEMBER 2006

CaseChat Overview and Summary

The consolidated proceedings before Kiefel J in the Supreme Court of Norfolk Island involved three actions brought by Patrick Thomas Smith, Lorraine Ruth Smith and Andrea Leanne Smith against John George Edward and the Administration of Norfolk Island, with Colin Francis Edward later being joined as the third defendant. The plaintiffs sought to have certain property transactions set aside and to enforce judgments against the defendants to recover debts owed to them. The legal issues before the court were whether Colin Francis Edward should be joined as a third defendant, whether a conveyance of property on Norfolk Island and a life interest created should be set aside, and whether the first and third defendants should be ordered to make the property available for judgment satisfaction and pay costs.

The court held that Colin Francis Edward should indeed be joined as the third defendant in each of the proceedings, given the evidence indicated his involvement in the transactions in question. Regarding the conveyance of Portion 52K and the life interest, the court found that the conveyance was voidable due to the presence of fraud or unconscionable conduct. The court set aside the conveyance and the life interest created on that date. Furthermore, the first and third defendants were ordered to make the property available for the satisfaction of the plaintiffs' judgments and to pay all costs of the proceedings, including reserved costs.

Orders

Orders of the court

1. Colin Francis Edward be joined as third defendant to each of the three proceedings SC 7, 8 and 9 of 2004.

2. The conveyance of Portion 52K on Norfolk Island and the life interest created on 19 September 2003 recorded in Absolute Sale or Conveyance 1408 be set aside.

3. The first and third defendants do all things necessary to make the property in Portion 52K available for the satisfaction of the judgments in favour of the plaintiff in each of the three actions SC 7, 8 and 9 of 2004.

4. The first and third defendants pay each of the plaintiff’s costs of and incidental to the proceedings, including any reserved costs.

IN THE SUPREME COURT

OF NORFOLK ISLAND

SC 7 OF 2004

BETWEEN:

PATRICK THOMAS SMITH

Plaintiff

AND:

JOHN GEORGE EDWARD

First Defendant

ADMINISTRATION OF NORFOLK ISLAND

Second Defendant

COLIN FRANCIS EDWARD

Third Defendant

JUDGE:

KIEFEL J

DATE:

8 DECEMBER 2006

PLACE:

BRISBANE

IN THE SUPREME COURT

OF NORFOLK ISLAND

SC 8 OF 2004

BETWEEN:

LORRAINE RUTH SMITH

Plaintiff

AND:

JOHN GEORGE EDWARD

First Defendant

ADMINISTRATION OF NORFOLK ISLAND

Second Defendant

COLIN FRANCIS EDWARD

Third Defendant

JUDGE:

KIEFEL J

DATE:

8 DECEMBER 2006

PLACE:

BRISBANE

IN THE SUPREME COURT

OF NORFOLK ISLAND

SC 9 OF 2004

BETWEEN:

ANDREA LEANNE SMITH

Plaintiff

AND:

JOHN GEORGE EDWARD

First Defendant

ADMINISTRATION OF NORFOLK ISLAND

Second Defendant

COLIN FRANCIS EDWARD

Third Defendant

JUDGE:

KIEFEL J

DATE:

8 DECEMBER 2006

PLACE:

BRISBANE

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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IN THE SUPREME COURT
OF NORFOLK ISLAND	SC 7 OF 2004

JUDGE:	KIEFEL J
DATE OF ORDER:	8 DECEMBER 2006
WHERE MADE:	BRISBANE

IN THE SUPREME COURT
OF NORFOLK ISLAND	SC 8 OF 2004