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Wentworth v Rogers

Wentworth v Rogers

Case [2003] NSWSC 371 9 May 2003

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CITATION: Wentworth v Rogers & Anor [2003] NSWSC 371

HEARING DATE(S): 29/01/2002-08/02/2002, 15/03/2002, 22/03/2002, 25/03/2002-27/03/2003, 02/04/2002-05/04/2002, 02/05/2002, 10/05/2002, 22/07/2002, 11/11/2002, 06/02/2003 (further written submissions)

JUDGMENT DATE:
9 May 2003

JUDGMENT OF: Howie J at 1

DECISION: The summons is dismissed. I direct that verdict and judgment be entered for the defendants on the statement of claim. The plaintiff is to pay the defendants costs.

CATCHWORDS: Fraudulent Conveyances - Conveyances Fraudulent as Against Creditors - Mortgage by husband over interest in property to wife - whether fraudulent as against prospective creditor, a litigant in proceedings against the husband.

LEGISLATION CITED: Conveyancing Act 1919 - s 37A
Supreme Court Rules - Pt 13 rule 2
Supreme Court Act 1970 - ss 23, 88
Justices Act 1902 - s 41(6)
Bankruptcy Act 1966 - ss 6, 121, 122

CASES CITED: Brigenshaw v Brigenshaw (1938) 60 CLR 336
Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd [2000] FCA 17; (2000) 169 ALR 344
Bradshaw v McEwans Pty Ltd (HCA, 7 April 1951, unreported)
Wentworth v Rogers [1984] 2 NSWLR 422
Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534
Wentworth v Rogers (No. 10) (1987) 8 NSWLR 398
Jones v Dunkel (1959) 101 CLR 298
Freeman v Pope (1870) LR 5 Ch App 536
Kang v Kwan [2002] NSWSC 1187
Re Cummins; Richardson v Cummins (1951) 15 ABC 185
Green v Schellner [2002] NSWSC 671
Re Symon: Public Trustee v Symon [1944] SASR 102
Silvera v Savic (1999) 46 NSWLR 124
Williams v Lloyd; Re Williams (1934) 50 CLR 341
Re Barnes; Ex parte Stapleton [1962] Qd R 231
PT Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515
Middleton v Pollock; Ex parte Elliot [1876] 2 CH D 104
Gregg v Bromley [1912] 3 KB 474
Abignano v Wenkart (1998) 9 BPR 16,765
Alati v Wei Sheung [2000] NSWSC 601; 34 ASCR 489
Van Tri Huynh v Helleh Holdings Pty Ltd [2001] NSWSC 1162
Harkness v Partnership Pacific Ltd (1997) 41 NSWLR 204

PARTIES :
Katherine Wentworth v Gordon John Rogers & Anor

FILE NUMBER(S): SC 11094/95

COUNSEL: Plaintiff - Ms Wentworth in person
1st Defendant - Mr Rogers in person
2nd Defendant - Mr R. Lovas

SOLICITORS: Plaintiff - in person
1st Defendant - in person
2nd Defendant - Dorrough Smart Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

FRIDAY 9 MAY 2003

11094/95 Katherine WENTWORTH v Gordon John ROGERS & ANOR

JUDGMENT
Introduction

1 His Honour: In these proceedings the plaintiff seeks to have set aside certain transactions entered into by the defendants, Mr and Mrs Rogers, in respect of a farming property near Tamworth named “Te Mata”. The plaintiff, Ms Wentworth, contends that a deed, transfer and mortgage relating to that property were entered into by the defendants fraudulently for the purpose either of ensuring that she could not obtain satisfaction of any judgment for costs or damages made in her favour in this Court against Mr Rogers…

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 Wentworth v Rogers

Details

AGLC: Wentworth v Rogers [2003] NSWSC 371
Case: [2003] NSWSC 371
Decision Date: 9 May 2003

CaseChat Overview and Summary

Wentworth and Rogers were the parties involved in the dispute, which was heard by the court. The case centred on whether a mortgage that Wentworth had taken out on his interest in a property, in favour of Rogers, his wife, was fraudulent as against a prospective creditor, a litigant in proceedings against Wentworth. The court was tasked with determining whether the mortgage constituted a fraudulent conveyance, designed to hinder, delay, or defraud creditors. This decision was crucial as it would affect the rights of the prospective creditor in relation to the property.

The primary legal issue the court had to address was whether the mortgage could be considered fraudulent, specifically in terms of whether it was intended to hinder, delay, or defraud a creditor, in this case, a litigant in proceedings against Wentworth. The court needed to examine the circumstances surrounding the mortgage, including the timing, the nature of the relationship between Wentworth and Rogers, and the intention behind the conveyance. Additionally, the court had to consider whether the mortgage was made with the actual intention of defrauding creditors or whether it could be justified as a legitimate transaction between spouses.

In delivering its judgment, the court analysed the evidence presented and the applicable legal principles. The court found that the mortgage was not fraudulent as against the prospective creditor. The reasoning was based on the nature of the transaction as a legitimate transfer of property between spouses, without any evidence of an intention to defraud creditors. The court held that the mere fact that a creditor might be prejudiced by the transaction did not necessarily render it fraudulent. Furthermore, the court noted that the mortgage was a genuine transaction between husband and wife, and there was no evidence to suggest that it was intended to defraud or delay creditors. Consequently, the court ruled that the mortgage was not a fraudulent conveyance as against the prospective creditor.

Orders