Wentworth v Rogers - [2004] NSWCA 430

NEW SOUTH WALES COURT OF APPEAL

CITATION: Wentworth v. Rogers & Anor. [2004] NSWCA 430

FILE NUMBER(S):
40474/03

HEARING DATE(S): 5 and 6 October 2004

JUDGMENT DATE: 25/11/2004

PARTIES:
Katherine Wentworth - appellant
Gordon J. Rogers - 1st respondent
Toni Rogers - 2nd respondent

JUDGMENT OF: Hodgson JA Santow JA Hislop J

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): CL 11094/95

LOWER COURT JUDICIAL OFFICER: Howie J

COUNSEL:
Mr. S. Robb QC with Ms. V. Culkoff for the appellant
Mr. R. Lovas for the 2nd respondent

SOLICITORS:
Russo & Partners, Arcadia for appellant
Beazley Singleton, Sydney for 1st respondent
Dorrough Smart, Sydney for 2nd respondent

CATCHWORDS:
CONVEYANCING - Fraudulent conveyances - Deed by husband acknowledging debt to wife, and associated mortgage over husband's property - Whether fraudulent as against prospective creditor - Whether wife a purchaser in good faith - Onus of proof

LEGISLATION CITED:
Conveyancing Act 1919 (NSW) s.37A
Bankruptcy Act 1996 (Cth) s.121

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40474/03
CL 11094/95
HODGSON JA
SANTOW JA
HISLOP J
Thursday 25 November 2004

WENTWORTH V. ROGERS & ANOR.

Judgment

HODGSON JA: On 9 May 2003, Howie J, in proceedings brought by the appellant Ms. Wentworth against the respondents Mr. and Mrs. Rogers, dismissed the summons, directed a verdict and judgment for the respondents on the Statement of Claim, and ordered Ms. Wentworth to pay their costs. Ms. Wentworth appealed to the Court of Appeal from those orders, and also from other orders not now requiring consideration.
On 27 October 2003, Howie J revoked the costs order previously made, and made more specific orders for costs, still generally requiring payment of costs by Ms. Wentworth.
CIRCUMSTANCES
The proceedings in substance sought orders setting aside certain transactions between Mr. and Mrs. Rogers as being alienations of property made with intent to defraud creditors, within s.37A of the Conveyancing Act 1919, which is as follows:
37A Voluntary alienation to defraud creditors voidable
(1)Save as provided in this section, every alienation of property, made whether before or after the commencement of the Conveyancing (Amendment) Act 1930, with intent to defraud creditors, shall be voidable at the instance of any person thereby prejudiced.
(2)This section does not affect the law of bankruptcy for the time being in force.
(3)This section does not extend to any estate or interest in property alienated to a purchaser in good faith not having, at the time of the alienation, notice of the intent to defraud creditors.
An understanding of the issues is assisted by a brief history.
There has been lengthy litigation involving Ms. Wentworth and Mr. Rogers arising out of events that occurred on 29 January 1977, at a time when they were still married. A jury verdict on 24 June 1994 in the proceedings between them established, as between them, that these events amounted to an unlawful assault by Mr. Rogers on Ms. Wentworth.
Mr. Rogers and Ms. Wentworth were divorced in 1978, and Mr. Rogers married Mrs. Rogers on 29 April 1979.
On 17 June 1981, Ms. Wentworth issued a summons against Mr. Rogers, alleging serious criminal offences in connection with the January 1977 events.
On the same day, the former matrimonial home of Mr. Rogers and Ms. Wentworth was sold for $380,000.00, from which sale Mr. Rogers received about $180,000.00 in September 1981.
There is in evidence a document bearing date 8 July 1981, signed by Mr. and Mrs. Rogers and witnessed by a Mr. Findlay, in the following terms:
This indemnification agreement made 8th July 1981. Between Gordon John Rogers and his wife Toni Rogers. Said Gordon John Rogers agrees to indemnify Toni Rogers for any legal costs or flow ons paid by Toni Rogers and interest at State bank overdraft rate current as of todays (sic) date, in relation to any litigation between said Gordon John Rogers and Katherine Wentworth. Said Gordon John Rogers agrees and promises to reduce his share in any and all jointely (sic) owned property by the value of legal costs and interest paid by Toni Rogers.
This document is to ensure that Toni Rogers is not disadvantaged (sic) financially by any litigation between Gordon John Rogers and Katherine Wentworth.
It appears that, by about that time, Mr. Rogers contemplated using $110,000.00 to purchase the property Te Mata in Tamworth (also called Lots 71 and 72); and this property was in fact purchased in the joint names of Mr. and Mrs. Rogers, the transfer occurring in about November 1981.
About a year later, Mr. Rogers spent about $40,000.00 to erect a dwelling on Te Mata. He also provided another $40,000.00 to assist Mrs. Rogers to purchase her previous husband’s interest in a house at Northbridge for $80,000.00. This purchase occurred in June 1983.
Mrs. Rogers’ evidence was that the 1981 document was signed because Mr. Rogers had committed all his funds, while she was expecting an inheritance of a unit in Killara, a half share of a boat and some furniture. In fact, Mrs. Rogers received about $69,000.00 from the sale of this unit in September 1983.
Committal proceedings were commenced against Mr. Rogers in November 1981, and they continued over various dates until dismissed by the Magistrate in November 1982. However, following Court of Appeal proceedings, the criminal prosecution ultimately went to a trial before a jury, as noted below.
In December 1982, Ms. Wentworth commenced civil proceedings for assault arising out of the events of January 1977.
In February 1983, Mr. Rogers applied for legal aid, which was later granted on condition that he provide a charge in favour of the Legal Aid Commission over his interest in Te Mata.
In June 1983, $7,350.00 was paid to a barrister Peter Twigg from an overdraft account with the State Bank in the names of Mr. and Mrs. Rogers. Previously in 1982 and 1983, amounts totalling $3,822.18 had been paid to solicitors Henry Davis York, and $1,000.00 had been paid to Mr. Twigg.
There is in evidence a document bearing date 30 July 1983, signed by Mr. and Mrs. Rogers and witnessed by Mr. Findlay, in the following terms:
This indemnification agreement made thirtieth of July, 1983
Between Gordon John Rogers and his wife Toni Rogers.
Said Gordon John Rogers agrees and promises to indemnify Toni Rogers for any lien by the Legal Aid Commission on any and all jointly owned property by reducing his share of any and all jointly owned property by the ammount (sic) of the Legal Aid lien.
This indemnification agreement is in addition and complimentary to that covering legal costs or flow ons paid by Toni Rogers resulting from legal action between Katherine Wentworth and Gordon John Rogers.
On 10 August 1983, Mr. Rogers received $6,100.00 from his former employer Radio Rentals, and this was paid into the overdraft account from which Mr. Twigg had been paid, reducing the overdraft by that amount.
In September 1983, Mr. Rogers gave a charge to the Legal Aid Commission over his interest in Lot 71. Further such charges to the Legal Aid Commission were given on 19 June 1985 and 19 May 1986.
Mr. Rogers’ criminal trial on the charges initiated by Ms. Wentworth in June 1981 took place in July 1985. Mr. Rogers was acquitted on 26 July 1985.
On 16 July 1985, Mr. and Mrs. Rogers borrowed $30,000.00 from the State Bank to pay Mr. Shand QC’s fees for this trial. This was paid to Henry Davis York. On 24 July 1985, during the trial, Ms. Wentworth’s brother handed Mrs. Rogers a cheque for $6,000.00 “to help you blokes get through this”. Of this, $3,550.00 was used to buy a car for Mrs. Rogers, and the balance was used to reduce the State Bank debt. Also, on 2 August 1985, Mrs. Rogers paid in reduction of that debt $5,000.00 received from a friend Mrs. McCallum.
On 12 August 1985, Mr. Rogers filed a cross-claim in the Supreme Court proceedings, alleging malicious prosecution against Ms. Wentworth.
On 25 November 1985, the trial of the Supreme Court proceedings commenced before Maxwell J. On 24 December 1985, the jury returned a verdict for Mr. Rogers on Ms. Wentworth’s claim, and a verdict for $571,000.00 in favour of Mr. Rogers for malicious prosecution on his cross-claim.
Also on 24 December 1985, Mr. Findlay lent Mr. Rogers $15,000.00 to pay fees for Mr. Burbidge QC. In June 1986, a further $3,233.42 was paid to Henry Davis York.
In October 1986, Mr. Rogers received $9,952.89 from his grandfather’s estate, which was paid in reduction of the State Bank debt.
In about October 1986, Mr. Findlay was paid $5,000.00 in reduction of his loan. Further amounts of $5,000.00, $1,000.00 and $4,000.00 were paid in April 1989, October 1989 and November 1989.
On 8 December 1986, Ms. Wentworth appealed against the jury verdict. This appeal was upheld on 6 March 1987, and a new trial ordered. On 18 July 1987, Ms. Wentworth was paid $3,540.65 costs ordered against Mr. Rogers.
On 8 December 1987, Henry Davis York rendered a legal bill to Mr. Rogers in the sum of $104,160.41. They obtained a judgment against him for $69,659.22 on 27 January 1989. They caused a bankruptcy notice to issue against him on 5 June 1989; and it appears that shortly afterwards, an agreement was reached whereby $20,000.00 was to be paid by yearly instalments of $2,000.00. Payments of $2,000.00 to Henry Davis York were made on 7 February 1990, 4 February 1991 and 4 February 1992.
In December 1990, a sum of about $20,000.00 still owing to the State Bank was re-financed through National Mutual Royal Bank, which later became the ANZ Bank.
In December 1991, Mrs. Rogers sold her Northbridge house for $510,000.00. On 18 December 1991, Ms. Wentworth’s brother was repaid the $6,000.00 provided by him on 24 July 1985.
In the second half of 1993, the Supreme Court proceedings were reactivated. On 10 September 1993, the Court sent a letter to Mr. Rogers advising that the call-over for trial was listed on 27 October 1993.
Meanwhile, on 23 September 1993, the Legal Aid Commission wrote to Mr. Rogers advising that he would need to make a fresh application for legal aid, and advising that the charge on his property secured $131,700.00 paid out of legal aid funds.
On 18 October 1993, Mr. MacLean, acting as Mr. Rogers’ solicitor, wrote to the Legal Aid Commission asking for a copy of the charge. This letter included the following paragraph:
Nevertheless the reviver of the litigation has stirred up something of a ‘hornets nest’ within his present household and his wife, Mrs Toni Rogers, has made some demands upon him to in effect put their affairs in order against the possibility that Miss Wentworth may succeed in her proceedings.
On 24 October 1993, there was a television broadcast on the 60 Minutes program in which Ms. Wentworth appeared. Mr. Rogers wrote to the Registrar of the Supreme Court asking that a hearing date not be allocated. However, on 27 October 1993, the matter was set down for hearing for twelve days commencing 26 April 1994.
According to Mrs. Rogers, on 30 November 1993 she attended the home of Mr. Oliver, her solicitor, and gave him instructions in accordance with a note that she wrote, in the following terms:
Contact Duncan. Confirm letters of indemnification. I wish to safeguard my assets. Would you arrange for ownership to be transferred from T in C to J T so that the ownership can be varied to reflect the indemnification and arrange for the sale of Lot 72 (attached) so that I can realise my assets. Legal Aid lien is on Lot 71 (House Block) State Bank over both Lots.
“Duncan” is Mr. MacLean.
On 19 January 1994, Mr. MacLean wrote the following letter to Mr. Oliver:
Further to your telephone calls the writer notes that you act for Mrs Toni Rogers and have sought of me information with regard to the parties' situation in the light of the fact that the claims of Miss Wentworth have been revived.
Gordon Rogers told the writer some months ago indeed and although at that stage no retainer was effected of more recent times we have agreed to act for Mr Rogers in connection with a hearing which at this stage is appointed to commence in the Supreme Court in Sydney on 26 April.
You doubtless know something of the history of the litigation which relates on the plaintiff's part to incidents that are said to have happened on 29 January 1977.
There have been many and varied proceedings between these parties but so far as the present proceedings are concerned the action was heard and determined in the November of 1985 when a jury found for Mr Rogers on Miss Wentworth's claim and on Mr Rogers' Cross-Claim for malicious prosecution found a verdict for him in a figure of something in excess of $500,000.
Miss Wentworth pursued an appeal and the Court of Appeal granted to her a re-trial hence the forthcoming matter.
The matter of course is going to have to run and there is little that Mr Rogers can do to obstruct that process however there was some recent television publicity which may justify a delay in the hearing.
Nevertheless I note your advices that Mrs Rogers is not prepared to further hazard her finances either by way of contributing to the legal costs or by way of leaving her assets at risk.
The writer notes your advices that Mrs Rogers has apparently financed legal costs on earlier occasions to the tune as you advised of many thousands of dollars and intends to call-up her entitlements in that regard.
Subsequent to our telephone discussions Mr Rogers has told me that he does indeed recall entering into a variety of agreements in relation to that earlier funding and we would be grateful if in due time you could outline the nature of Mrs Rogers’ demands and the quantification of what is said to be outstanding.
In response to your enquiries as to their landholding position we advise that they hold as joint tenants land in Folio Identifier 72/615640 which is subject to a Mortgage Z436109 in favour of the Australia and New Zealand Banking Group Limited.
Mr Rogers at this distance in time cannot recall whether the funds advanced by that Bank have anything to do with this litigation.
The parties also hold as joint tenants the land in Folio Identifier 71/615640 and although we have not undertaken a formal title search as it is understood that is the land upon which their home stands the title standing subject to both the same Mortgage to the bank and also subject to a Charge by Mr Rogers over his interest in the land in favour of the Legal Aid Commission of NSW.
Late last year Mr Rogers had some correspondence with the Legal Aid Commission to enquire if they were prepared to countenance an application for further assistance in relation to the resumed proceedings.
As things now stand it seems that the current means tests and guidelines and the like of the Legal Aid Commission prevent them from giving any fresh grant of aid and any earlier grant of aid has come to finality.
In the context of that correspondence however the Legal Aid Commission has quantified its existing Charge over Lot 71 at an amount of $131,700.
As we are instructed Mr Rogers has no other real estate and as you would probably know although he held a part-time position with the Chamber of Commerce that position terminated some time ago.
He tells the writer he in effect has no realisable assets and no cash resources with which to reimburse to his wife the funds that he says that he undoubtedly would owe her.
In that context the writer leaves it to you to outline the nature of Mrs. Rogers’ now demands and how she says those demands can be met.
On 14 February 1994, Mr. MacLean wrote to the Legal Aid Commission, attaching a fresh application by Mr. Rogers for legal aid. In that letter, the following statement about Mr. Rogers appears:
He tells us that he is entirely dependent upon his wife. He himself conducts no banking accounts and is not privy to hers. Indeed from what he says it would seem that there is some degree of estrangement between them albeit not of any long term nature and precipitated by the revival of Miss Wentworth’s action.
On 18 February 1994, Mr. Oliver replied. By this time, Mr. Oliver had a two-page document which Mr. Rogers had prepared and given to Mrs. Rogers in about late 1993, purporting to record payments and other transactions giving rise to an indebtedness from Mr. Rogers to Mrs. Rogers in excess of $257,000.00. A copy of this document is annexed to this judgment.
Mr. Oliver’s letter of 18 February 1994 was in the following terms:
We thank you for your letter of the 19th ultimo and note what you say.
It is correct that Mrs. Rogers has provided and is still providing funds to cover the cost of prior proceedings.
Details of payments made to date are as follows:-
Henry Davis York  $13,055.00
P. Twigg  $ 8,350.00
A.B. Shand  $30,000.00
K.W.W.  $ 3,540.00
A. Findlay  $15,000.00
Philips Fox   $      30.00
F.P. Wentworth  $ 6,000.00
$75,975.00
To finance the payment to A.B. Shand $30,000.00 was borrowed from the State Bank and there is a balance outstanding on that account of $18,000.00 which is serviced by Mrs. Rogers.
There is a balance outstanding to Henry Davis York of $14,000.00 which is being paid off by instalments of $2,000.00 per annum by Mrs. Rogers.
The sum paid to A. Findlay was in repayment of a loan to Mr. Rogers to pay legal costs, also serviced by Mrs. Rogers.
The same applies to the $6,000.00 paid to F.P. Wentworth.
On 21 October, 1986 Mr. Gordon Rogers paid to Mrs. Rogers $9,952.89 being a payment received from the estate of his late father.
The Legal Aid Commission of N.S.W. is owed $131,700.00 and caveat No. W33222 is registered on Lot 71 D.P. 615640 being the house block jointly owned by Mr. and Mrs. Rogers.
To the above total of $75,975.00 should be added the balance owing to:-
Henry Davis York  $ 75,975.00
$ 14,000.00
$ 89,975.00
Less paid by Mr. G. Rogers              $   9,952.89
$ 80,022.11
Plus estimated interest  $ 50,000.00
Total amount  $130,022.11
The debt to the Legal Aid Commission of N.S.W. secured by the above Caveat could not at present be taken into account but to protect Mrs. Rogers' interest in Lot 71 the present joint tenancy should be severed and a tenancy in common created.
Lot 71 is the principal place of residence of Mr. and Mrs. Rogers and the creation of the tenancy in common would attract duty of $10.00.
Whether the same would apply to Lot 72 is doubtful because it is a separate parcel with a separate deed and may not be treated as part of the principal place of residence. Can you tell us whether both parcels were acquired at the same time?
In creating the tenancy in common the consent of the Caveator and the Mortgagee would need to be obtained.
The Mortgages to the A.N.Z. Bank are different mortgages namely Z436109 on Lot 72 and Z436110 on Lot 71. See copy search papers attached.
We submit herewith two RP Transfer to create the tenancy in common. One Transfer includes both Lots 71 and 72 and the other only Lot 71. In the first instance we intend to treat both Lots 71 and 72 as the principal place of residence of the parties.
We would require Mr. Rogers to sign an acknowledgement of the total debt and would like your views as to the debt to the Legal Aid commission.
What value does Mr. Rogers place on Lots 71 and 72 separately.
On 3 March 1994, Mr. MacLean replied, enclosing transfers signed by Mr. Rogers with a view to affecting a severance of the joint tenancy of Lots 71 and 72.
On 4 March 1994, an application brought by Mr. Rogers to vacate the hearing date was refused, and an application by Ms. Wentworth for separate hearings of her claim and Mr. Rogers’ cross-claim was stood over to 28 March 1994.
On the same day, the Legal Aid Commission advised Mr. Rogers that his application for legal aid was refused, and a few days later advised him that the previous grant was exhausted.
Between 28 and 30 March, Sully J heard the application for separate trials; and on 8 April 1994, he granted this application, and fixed the trial of Ms. Wentworth’s claim commencing 14 June 1994.

On 12 April 1994, Mr. Oliver wrote to Mr. MacLean, enclosing a deed of acknowledgement of debt and a mortgage for signature by Mr. Rogers. These documents were returned signed by him on 26 April 1994. It is these documents that are now sought to be set aside; although before the primary judge Ms. Wentworth also sought to set aside the transfers effecting severance of the joint tenancy.
The acknowledgement was in the following terms:
THIS DEED made the 22nd day April of 1994
BETWEEN: TONI ROGERS of "Te Mata," Moor Creek in the State of New South Wales Married Woman (hereinafter called "the Creditor") of the one part AND GORDON JOHN ROGERS of "Te Mata," Moor Creek in the State aforesaid Farmer and Grazier (hereinafter called "the Debtor") of the other part WHEREAS the Debtor is indebted to the Creditor in the sum of ONE HUNDRED AND THIRTY THOUSAND DOLLARS ($130,000.00) (hereinafter called "the Debt") being made up of sums lent to the Debtor by the Creditor AND WHEREAS the Debtor acknowledges that he is indebted to the Creditor in that sum AND WHEREAS the Debtor has agreed to give to the Creditor security for the debt over his interest in the property "Te Mata" being the land comprised in Certificate of Title Identifiers 71/615640 and 72/615640 held by the Debtor and the Creditor as tenants in common in equal shares
NOW THIS DEED WITNESSETH
1.            The Debtor acknowledges that he is indebted to the Creditor in the sum of ONE HUNDRED AND THIRTY THOUSAND DOLLARS ($130,000.00).
2.            The Debtor will forthwith execute a mortgage over his interest in Folio Identifiers 71/615640 and 72/615640 as Mortgagor with the Creditor as Mortgagee.
3.            The Debtor will repay the said sum of ONE HUNDRED AND THIRTY THOUSAND DOLLARS ($130,000.00) to the Creditor within fourteen (14) days of the Creditor making written demand to the Debtor for such repayment together with interest thereon if demanded at the current rate chargeable from time to time by Westpac Banking Corporation on commercial advances in excess of ONE HUNDRED THOUSAND DOLLARS ($100,000.00)
The mortgage was a standard form, containing the following clause:
1.This Mortgage is given to secure and assure the performance by GORDON JOHN ROGERS of the covenants given by him in a Deed of even date herewith between TONI ROGERS Creditor and GORDON JOHN ROGERS Debtor and the Mortgagor covenants that any breach of covenant by him contained in that Deed shall be a breach of this Mortgage entitling the Mortgagee to exercise all of her powers as herein provided.
The trial of Ms. Wentworth’s claim proceeded between 14 June and 24 June 1994. The jury found a verdict for Ms. Wentworth, and an order for costs was made in favour of Ms. Wentworth.
The orders sought in these proceedings were originally sought by an application in the Court of Appeal in September 1994; and these proceedings themselves were commenced in the Common Law Division by summons on 30 March 1995. They were heard by the primary judge over many days between 29 January 2002 and 6 February 2003.
DECISION OF PRIMARY JUDGE
The primary judge said early in his judgment that reduced to its essence, Ms. Wentworth’s case was that the acknowledgement of indebtedness was a sham. He noted that in substance the claim was that there had been a fraudulent alienation of property, and that Ms. Wentworth was seeking relief in the nature of that provided by s.37A of the Conveyancing Act. He also said this:
9 In this case the plaintiff must satisfy me on the balance of probabilities, but with due regard to the seriousness of the allegations she makes against them, that the defendants have in effect conspired between themselves, and probably with others, to enter fraudulent property arrangements and to manufacture evidence to support them. …
10 In the present case, I approach the matter on the basis that the plaintiff must satisfy me to the appropriate standard that there is a reasonable and definite inference arising from the material of at least the following: that there was no agreement between the defendants that Mrs Rogers should pay her husband’s legal expenses; that she did not do so; and that Mr Rogers was not indebted to his wife as he acknowledged in the Deed supporting the transfer and mortgage of Te Mata. In particular, the inference must arise that documents purporting to support such an agreement and subsequent payments made by Mrs Rogers of her husband’s legal expenses are false and manufactured later than 1993 when the defendants became aware that Ms Wentworth might succeed in the litigation then before this Court.
The primary judge considered submissions based on financial records produced by Mr. and Mrs. Rogers to the effect that the legal fees of Mr. Rogers had not been paid by Mrs. Rogers, so that the payment of these fees could not have given rise to a debt from Mr. Rogers to Mrs. Rogers, or have been believed to do so.
However, the primary judge dealt with those submissions inter alia on the following basis:
189 In those circumstances there does not seem to me to be any reason why the defendants could not themselves, as between themselves, determine what income would be designated as being joint money or as belonging to either one of them and into which account income should be placed at any particular time. Nor does it seem to me to be unreasonable that they might themselves, as between themselves, determine that one person would accept the burden or responsibility for particular expenses from an income which had, notionally at least, been designated as belonging to one or other of them. It might be that a dispute could later arise between them as to these arrangements and the lack of any strict accounting records might give rise to difficulties of proof of the arrangements if such was necessary. It might be that complicated questions could arise as to what legal or equitable interest each held in their joint or individual assets at any given time.
190 But it does not necessarily follow that, because funds are paid out of a joint account, those funds must be regarded as being jointly owned, or, if paid out of the account in the name of one of the defendants, that it should necessarily be treated as money belonging to that defendant. Nor does it follow, that, if at any particular point in time the source of the apparently joint funds can be traced to one particular defendant, those funds should be regarded as necessarily belonging to that defendant. Yet that type of reasoning is the basis for much of the plaintiff’s argument that funds apparently paid towards Mr Rogers’s legal expenses were paid by Mr Rogers himself and not by Mrs Rogers. If it is accepted that there was an agreement that certain funds would remain identifiable as belonging to Mrs Rogers whenever they were received and to whichever account they were paid, and if it were agreed by Mrs Rogers that she would use her funds to pay Mr Rogers’s legal expenses, there is no reason why, at the behest of the plaintiff, this Court should find that, contrary to that agreement, the payments, were in fact made by Mr Rogers from his own money.
Then, in considering detailed submissions as to items in the list prepared by Mr. Rogers and subsequently included in the amount referred to in the acknowledgement of debt, the primary judge proceeded on the basis that, even if a payment was not directly traceable to funds of Mrs. Rogers, it could be considered as having been paid by her on the basis of such an agreement or understanding, or at least that this could reasonably have been believed by Mr. and/or Mrs. Rogers at the time of the making of the list and entry into the transactions.
The primary judge noted the following evidence from Mr. and Mrs. Rogers as to their intentions:
260 Mr Rogers believed that, arising from the 1981 and 1983 indemnity documents, he was obliged to protect Mrs Rogers’s loans to him through payment of his legal fees by reducing his interest in Te Mata. He believed that Mrs Rogers wanted to formalise the debt to protect her interests and he intended to do that by “signing over my share of the farm to her”. He believed that his wife would take out a mortgage over his share in the property but he was unsure of the legal mechanism necessary to achieve that result. He stated that he believed that he was doing what was necessary to “protect and give Toni the $130,000” and that she would eventually have title to the property. If the property were ultimately sold, he envisaged that $133,000 would be paid to the Legal Aid Commission and the residue to his wife. His evidence was that he was not really concerned with the documents he signed and that he was unaware of the amount of the money specified in the deed, as he simply wanted his wife’s interests protected. However, he was aware that the arrangement would not effect his enjoyment of the property provided that his marriage survived.
261 Mrs Rogers understood that the arrangements made in 1994 were a consequence of the 1981 and 1983 indemnity documents and were to ensure repayment to her of the debt that had accumulated as a result. She gave evidence that her husband entered into the 1994 transactions because she asked him to do so. She believed that the amount of $130,000 was determined by the lawyers acting for them, based upon the list drawn up by Mr Rogers, and that they had determined an appropriate interest factor, to which she was entitled. Mrs Rogers claimed that she was unaware of any outstanding liability of her husband to the plaintiff arising from their litigation.
He noted the following contentions of Ms. Wentworth:
262 The plaintiff contends that the intention of the defendants has to be seen in light of the revival of the litigation in 1993, the refusal of Abadee J in March 1994 to grant an adjournment of the hearing in April, and the severing of the cross-claim from the claim by Sully J in the same month. It is submitted by the plaintiff that it was the certainty of her claim being heard and the probability of her success that caused the steps to be taken to put Mr Rogers’s interest in the property beyond her reach. She notes that Mr Rogers was advised that he could not receive legal aid for the further proceedings. Mr McLean in a letter to the Legal Aid Commission indicated that the revival of the litigation had “stirred up a hornet’s nest” between the defendants.
263 The plaintiff submits that Mr Rogers would have believed that there was a likelihood that she would succeed in her claims, his earlier success having been overturned by the Court of Appeal. The plaintiff contends that I should reject the suggestion by Mrs Rogers that she was unaware of the revival of the litigation and points to, what she asserts to be, conflicting evidence between the defendants on this matter. She also submits that I should reject the evidence of the defendants that the impetus for the 1994 transactions came from Mrs Rogers and not her husband. The plaintiff draws attention to a threat by Mr Rogers in September 1994 that he would apply for bankruptcy when he received assessments of costs from the proceedings before Sully J.
As to the credit of the witnesses, the primary judge found that Mrs. Rogers favourably impressed him, and he thought that she was attempting to tell him the truth and to explain as best she could the various financial transactions in which she was involved. As for Mr. Rogers, the primary judge said he could not express the same confidence in the reliability of his evidence.
The primary judge accepted the evidence of Mrs. Rogers that she was unaware of the revival of the proceedings in October and November 1993, and that she had initiated the making of the list and thereby the entry into the transaction because she was concerned that they had not made headway financially, although she had made quite good money. In any event, the primary judge was not persuaded that the arrangements were fraudulent.
He summarised his factual findings as follows:
312        The plaintiff has failed to satisfy me that the defendants entered into the fraudulent scheme that she set out to prove. I am satisfied that there was an agreement in place from 1981 to the effect that Mrs Rogers’s interests in Te Mata would not be jeopardised by the cost to Mr Rogers of the litigation involving Ms Wentworth. In 1981 there was an understanding between the defendants that Mrs Rogers was not going to be disadvantaged by the costs of litigation involving Ms Wentworth. It was part of that understanding that, if Mrs Rogers expended her funds in paying legal fees for her husband, she would be recompensed for those payments with interest and, if necessary, out of Mr Rogers’s interest in the family property, Te Mata.
313        I am satisfied that after 1981 Mrs Rogers took on the responsibility for the payments of her husband’s legal fees either by funding payments directly or by servicing loans taken out to pay them. There was an agreement that Mr Rogers’s income would generally be expended in maintaining the family and Mrs Rogers would fund the payment of legal costs and associated expenses. I am not satisfied that Mrs Rogers lacked the funds or expectation of funds to either make or honour that agreement.
314        In 1983 that understanding was extended to ensuring that Mrs Rogers was not to be prejudiced by Mr Rogers’s liability to the Legal Aid Commission.
315        It may have been the case that at any given time prior to 1993 the defendants had not been concerned to determine how Mrs Rogers’s interests would be protected and no occasion had arisen to give effect to the 1981 understanding. It may be that they never contemplated the occasion for a reckoning and the necessity of some action being taken to repay Mrs Rogers until 1993. But I am satisfied that it was always the intention of the defendants that, at the end of the day, Mrs Rogers was not going to be out of pocket because of Mr Rogers’s involvement in litigation with the plaintiff.
316        I am satisfied that Mr Rogers was in debt to his wife in 1993 for monies paid out in connection with the payment of legal fees arising from his litigation involving the plaintiff. I am unsure of the actual extent of that indebtedness because of the poor accounting practices of the defendants and the passage of time between the understanding and the determination of the amount owing. But I am not persuaded that in 1993, when he prepared the list, Mr Rogers was other than negligent in his determination of the amount of that debt. In other words, I am not satisfied that the preparation of that list was fraudulent in the sense that Mr Rogers knew that his wife was not entitled to repayment of the money specified in the list. Nor was the acknowledgment of debt or the consequential mortgage fraudulent in that sense.
317        I am satisfied that Mrs Rogers was not a party to the making of the 1993 list. I am not persuaded that, insofar as the list contained errors, that Mrs Rogers was aware of those errors or believed that she was not entitled to the amount of money set out in the list and which was later the subject of the acknowledgment of debt and the mortgage. I am satisfied that the list was made at the request of Mrs Rogers and that when she received it she sought to secure both her past and future payments in accordance with what she believed was promised under the 1981 agreement.
318        I am not persuaded that there was any impropriety in the preparation of the deed and mortgage or that I should reject the evidence of the defendants in that regard. There is no evidence to support any suggestion now made that there was a conspiracy between the defendants and their legal representatives to defraud the plaintiff.
He considered cases concerning s.37A, noting that what had to be shown was a real intention to defeat or delay creditors; and he held that, although an inference of such an intention might have arisen from the timing of the alienation and the content of the list drawn up by Mr. Rogers, he was not prepared to draw it. In any event, he would not be persuaded that Mrs. Rogers did not fall within the proviso.
GROUNDS OF APPEAL
The Amended Notice of Appeal included 76 grounds, and Ms. Wentworth provided extensive written submissions in support of them. However, Ms. Wentworth was represented by Mr. Robb QC at the hearing; and he indicated that many of the grounds and associated submissions would not be relied on. I note that I had previously read Ms. Wentworth’s submissions, and although I had not formed any final views on them, my very strong impression is that the matters relied on by Mr. Robb were the only ones that gave her any prospect of success.
In substance, the matters relied on by Mr. Robb were as follows:
1.The primary judge’s finding to the effect that there was an agreement or understanding that, when legal fees were paid, this payment should be treated as a payment by Mrs. Rogers giving rise to a debt from Mr. Rogers to her, was unsupported by the evidence, and the primary judge did not give reasons for it.
2.The primary judge erred in upholding as effective a depletion of a husband’s assets in favour of a wife, while denying appropriate examination of the basis on which this was done, that is, examination of whether there truly were transactions giving rise to debts from the husband to the wife. As well as not appropriately examining the relevant transactions, the primary judge failed to make a determination as to whether a provision of $40,000.00 from Mr. Rogers to Mrs. Rogers was a loan or a gift, and failed to work out the implications of such a finding.
3.In the circumstances, the evidence was overwhelming that Mr. Rogers and Mrs. Rogers were motivated by the revival of the proceedings, and that Mr. Rogers compiled the list without regard to whether amounts were truly owing by him to Mrs. Rogers, with a view to ensuring that Mrs. Rogers should receive these amounts out of his property and that, to that extent, his property should be unavailable to creditors, especially Ms. Wentworth.
4.The question of whether Mr. Rogers intended to defeat or delay creditors in that sense was never adequately addressed by the primary judge, because he considered Ms. Wentworth’s case as depending on proving that the mortgage was a sham, that there was a conspiracy, that various documents were forgeries, and so on.
5.The primary judge did not adequately address the question whether Mrs. Rogers was protected by s.37A(3), but simply found she accepted Mr. Rogers’s list; where in truth she would not be bona fide unless she at least applied her mind to the question of whether the debt in question was truly owed to her, and she did not do so.
Mr. Robb also made a formal submission that the presumption, in cases where a husband causes property paid for by him to be put in the name of a wife, was a presumption of resulting trust and not of advancement; but he accepted that this Court would be bound by Calverley v. Green (1984) 155 CLR 242 to hold the contrary. For that reason, there was no submission before us that Mrs. Rogers did not, at all times since November 1981, have a beneficial half interest in Te Mata; so the severance of the joint tenancy did no more than change the character of that beneficial half interest.
LEGAL PRINCIPLES
The onus lies on the person seeking relief under s.37A to prove “intent to defraud creditors”. It is not necessary to show the elements of the tort of deceit: what is required is an intent to defeat or delay or hinder creditors. It is not entirely clear if there is a superadded requirement to show dishonesty; but in any event, if there is an intent to defeat or delay or hinder creditors, dishonesty will readily be inferred, particularly if the alienation is not for consideration. See Williams v. Lloyd (1934) 50 CLR 341; Lloyds Bank Ltd. v. Marcan [1973] 1 WLR 1387; Cannane v. J. Cannane Pty. Limited (1998) 192 CLR 557.

The section does not affect an alienation which amounts merely to a preference of one creditor over another: Middleton v. Pollock [1876] 2 Ch.D. 104; Glegg v. Bromley [1912] 3 KB 474; Abignano v. Wenkart (1998) 9 BPR 16,765.
Even if an alienation made with intent to defraud creditors is shown, s.37A(3) provides that the section does not extend to interests “alienated to a purchaser in good faith not having, at the time of the alienation, notice of the intent to defraud creditors”. In Huynh v. Helleh Holdings Pty. Limited [2001] NSWSC 1162, Hamilton J held that the onus was on the person seeking relief to prove lack of good faith, or notice of the intent to defraud, relying particularly on P.T. Garuda Indonesia Limited v. Grellman (1992) 35 FCR 515.
However, that case concerned s.121 of the Bankruptcy Act, which at the relevant time was in the following terms:
121(1) Subject to this section, a disposition of property, whether made before or after the commencement of this Act, with intent to defraud creditors, not being a disposition for valuable consideration in favour of a person who acted in good faith, is, if the person making the disposition subsequently becomes a bankrupt, void as against the trustee in the bankruptcy.
(2) Nothing in this section shall be taken to affect or prejudice the title or interest of a person who has, in good faith and for valuable consideration, purchased or acquired the property the subject of the disposition or any interest in that property.
(3) In this section, "disposition of property" includes a mortgage of property or a charge on or in respect of property.
It is clear that the Court in that case was considering the onus of proof as to good faith of the disponee (35 FCR at 527), which is dealt with in s.121(1), and not the good faith of any person who may for the time being hold the property, referred to in s.121(2). Under s.121(1), the onus is on the party seeking to avoid the transaction to show, inter alia, the element required by the phrase commencing “not being”. However, if that onus is discharged, I think the onus under s.121(2) would lie on the person asserting its protection; and I think the same is true of s.37A(3) of the Conveyancing Act.
The case of Michael v. Thompson (1894) 20 VLR 548, referred to in Garuda, suggests the contrary; although there is no reference in that case to the statutory provision there under consideration. Authority in favour of the view that the onus under s.37A(3) lies on the person seeking its protection is the following dictum by Parker J in Glegg at 492:
The only remaining point is, I think, that which was argued under the statute of 13 Eliz. c. 5. Now the scheme of that statute is this: By it all conveyances and assignments made with intent to hinder and delay creditors are rendered void against all creditors hindered or delayed by their operation. There is, however, a proviso for the protection of a purchaser for good consideration without notice of the illegal intention. In the authorities which deal with the statute it is not always clear whether the judges are dealing with the operative part of the Act or with the proviso. The illegal intent under the operative part is a question of fact for the jury or the judge sitting as a jury. On the one hand the want of consideration for the conveyance or assignment is a material fact in considering whether there was any illegal intent, but it is not conclusive that there existed any such intent. In the same way consideration was by no means conclusive that there was no illegal intent. When, however, one comes to deal with the proviso, it is quite clear that any person relying on the proviso must prove both good consideration and the fact that he had no notice of the illegal intent.
This was quoted in approval in Marcan at 345.
This view was also consistent with the view favoured by the weight of authority that, in the application of the doctrine of bona fide purchase of a value, the onus of proof lies on the purchaser: Meagher Gummow & Lehane Equity (4th Ed) [8-300].
DECISION
I will deal first with the question of motivation, the third of the matters relied on by Mr. Robb. I will then consider the second of those matters, concerning examination of the basis of the transaction. I will then consider the question of an agreement or understanding, referred to in the first matter raised by Mr. Robb. I will then consider the question of Mr. Rogers’ intention, the fourth matter raised by Mr. Robb. I will conclude by considering Mrs. Rogers’ position, as raised in the fifth matter.
I start with motivation, because this was essentially the only basis on which there was a direct attack on the primary judge’s generally favourable credit findings in relation to Mrs. Rogers.
I accept that the letters written by the solicitors for the parties around the time of the transaction provide strong evidence that, by October 1993, Mr. Rogers was motivated by the revival of the proceedings in carrying through the transaction; but I do not understand that the primary judge made any findings to the contrary of that. The correspondence also supports the view that Mrs. Rogers was also motivated by the revival of the proceedings, although it does so less strongly and less directly. In my opinion it does not do so strongly enough to justify rejection by an appeal court of the primary judge’s acceptance of Mrs. Rogers as an honest witness, and his acceptance in substance of her account of the genesis of the transaction, to the effect that she was unaware of the television program until about one and a half weeks after it was broadcast; that at least until this time she did not know of the revival of the proceedings; that prior to this the marriage was going through a difficult patch and she asked Mr. Rogers to prepare a list of the payments of legal costs made by her; that when she received it she sought to secure her past and future payments; and that the impetus for the transaction came from her and not Mr. Rogers. Acceptance of this account from Mrs. Rogers is not inconsistent with the view that Mr. Rogers, while carrying out his wife’s request, was also motivated by the revival of the proceedings; and in my opinion this is in substance what the primary judge found.
Turning to Mr. Robb’s second broad contention, there is force in the submission to the effect that, where there is a transaction between a husband and wife that prima facie depletes the husband’s assets available for creditors, the circumstance that informal arrangements or understandings may exist between a husband and a wife does not absolve the Court from consideration of what was the true effect of the legal relationships between them, when that is relevant to the question whether the transaction was entered into with intent to defraud creditors.
In my opinion, the primary judge did give consideration to this, and concluded that Mr. Rogers was in debt to his wife albeit that the primary judge was unsure of the actual extent; but if and to the extent that the list was inaccurate, the primary judge was not satisfied that any error was more than negligent. In my opinion, where the judge had previously given detailed consideration to how the list was arrived at and the status of various items in it, this did not amount to a deficiency of reasons.
However, Mr. Robb has submitted to the effect that a detailed consideration of the transactions would show that the primary judge’s conclusion was wrong; and in deference to those submissions, I will undertake such a consideration. I will do so first on the assumption that the only relevant agreement is the written agreement of 8 July 1981; and then I will consider what difference it would make if there was an agreement in terms of what has been called “the understanding”.
In undertaking this exercise, it is appropriate to take into account that the onus generally of proving matters which would support an inference of intent to defraud creditors lies on Ms. Wentworth; but also to have regard to the circumstance that the matters under consideration are solely within the knowledge of Mr. and Mrs. Rogers. It is also relevant to have regard to the primary judge’s generally favourable view of Mrs. Rogers’ credibility. It is also appropriate to have regard to the presumption of advancement, which would mean that the interest of Mrs. Rogers in any joint account is at least 50%, unless the contrary is shown; and her interest in any account in her own name is a full beneficial interest, again unless the contrary is shown. It would not be sufficient to show the contrary that in some respects an account in Mrs. Rogers’ name alone is treated as a joint account. I would add that, even in the absence of this presumption, it seems to me consistent with the intention of the parties, in so far as it is disclosed in the evidence and found in the judgment, that Mrs. Rogers should have a 50% interest in any joint account and a full beneficial interest in accounts in her own name.
I will deal first with the payments made in the year ended 30 June 1983. Three payments to Henry Davis York, namely that of 27 December 1982, 28 January 1983, and 21 February 1983, respectively of $400.00, $400.00 and $1,400.00, were made from an account in the name of Mr. Rogers; but Mrs. Rogers gave evidence that she provided the money for these payments to be made; and that evidence was not rejected. The other payments to Henry Davis York, namely further payments of $500.00, $400.00, $500.00 and $222.18, came from a joint account, and can be considered as contributed by Mrs. Rogers as to at least one half. The other two payments were made to Mr. Twigg of $1,000.00 and $7,350.00 and came from a joint account, so can be considered as having been made as to at least one half by Mrs. Rogers. The contribution of Mrs. Rogers to these payments adds up to $7,186.00. The agreement provides for interest at State Bank overdraft rate current as at 8 July 1981; and I was not referred to any evidence as to this. I note that the Supreme Court rate at that time was 14.5%, and my understanding is that this is generally set at something like 1% or 2% above overdraft rates. Conservatively, I will adopt 12% as the interest rate. Interest for about 11 years at 12% on $7,186.00 would amount to something like $9,400.00, giving a total in respect of this period of about $16,500.00.
In the year ended 30 June 1986, $30,000.00 was paid to Mr. Shand from a joint overdraft, so that $15,000.00 of this can be considered as contributed by Mrs. Rogers. A further $3,233.42 was paid to Henry Davis York, with no clear evidence as to where it was paid from. It seems reasonable to treat at least half of that as contributed by Mrs. Rogers. In addition, in that year Mr. Burbidge was paid $15,000.00, but that was financed by an interest-free loan from Mr. Findlay, and it is reasonable to treat the relevant contributions as the amounts expended to repay that loan. Accordingly, for that year one can put Mrs. Rogers’ contribution at $16,116.71. Eight years’ interest at 12% would give interest of $15,952.00, giving a total in round figures of around $32,000.00.
In the year ended 30 June 1987, $3,540.65 was paid to Ms. Wentworth on 18 July 1986, and $5,000.00 to Mr. Findlay on 17 November 1986. It appears that these payments came from a joint account, so it is reasonable to treat at least half as being paid by Mrs. Rogers. That amounts to $4,270.32. Seven years’ interest at 12% amounts to $3,587.00, and one can round this off to $7,500.00.
In the year ended 30 June 1990, Mr. Findlay was paid $5,000.00 from an account in the name of Mrs. Rogers, and adding five years’ interest at 12% this gives a total of $8,000.00.
Payments from an account in the name of Mrs. Rogers were made to Mr. Findlay of $1,000.00 on 22 October 1989, and $4,000.00 on 3 November 1989; and a payment of $2,000.00 was made from that account to Henry Davis York on 7 February 1990. Allowing four years’ interest on $7,000.00 at 12% gives interest of $3,360.00, giving a total that can be rounded off to $10,500.00.
Further payments were made from an account in the name of Mrs. Rogers to Henry Davis York of $2,000.00 each on 7 February 1990, 4 February 1991 and 4 February 1992. Adding three years’ interest to this at 12% gives a further $2,000.00 and a total of $8,000.00.
The total of these sums is $82,500.00. In addition, there was an outstanding debt to Henry Davis York of $14,000.00 and an outstanding debt to the State Bank of $18,000.00, of which half was attributable to Mr. Rogers. There could in those circumstances plainly be no objection, having regard to Mr. Rogers’ 1981 undertaking that his share in any jointly owned property be reduced by the amount of any such debt, for Mr. Rogers to give security over his interest in Te Mata to the extent of $82,500.00 plus whatever Mrs. Rogers should pay in respect of the $14,000.00 owing by Mr. Rogers to Henry Davis York and his $9,000.00 share of the debt to the State Bank.
On that analysis, there were errors by Mr. Rogers in preparation of his list. First, a number of payments from joint accounts were treated as wholly made by Mrs. Rogers. Second, the $6,000.00 repayment to Mr. Wentworth should not have been included, because it did not represent money used for his legal fees. Third, it was an error to treat the $14,000.00 owing to Henry Davis York and $18,000.00 owing to the State Bank as if they were debts that had already been paid, and in the case of the State Bank, treating it as if it was wholly owed by him. Of course, it may in equity have been wholly owed by him, but that was not established. However, on this analysis, Mr. Rogers need not have given credit for the $9,952.89 which he contributed to paying off the bank loan. The circumstance that he did not give credit for $6,100.00 paid into the joint account after $7,350.00 had been paid to Mr. Twigg would not be an error having regard to the presumption of advancement.
Next, I will consider what difference would be made to the figures if there was an agreement that any money paid for legal fees was as between them to be treated as money provided by Mrs. Rogers. There would be nothing improper with such an agreement, nor could such an agreement be considered unreasonable, particularly in circumstances where, at least after about mid-1983, most of the income providing for the support of Mr. and Mrs. Rogers was provided by Mrs. Rogers. Such an understanding would add to the amounts expended by Mrs. Rogers to 30 June 1983 the sum of $4,486.00, plus interest of $5,921.00, making in round figures about $10,000.00. It would double the amounts for the years ended 30 June 1986 and 30 June 1987, adding a further $40,250.00. In total therefore it would add $50,250.00 to the $82,500.00, making a total of $132,750.00. However, since the whole of the payment to Mr. Shand of $30,000.00 would be treated as having been made by Mrs. Rogers, the amount still owing to the State Bank ultimately consequent upon that payment would be left out of account altogether.
It follows from this analysis that, if Mr. and Mrs. Rogers believed that there was an agreement in place between them to the effect of “the understanding”, such agreement would support a debt of over $130,000.00 owing by Mr. Rogers to Mrs. Rogers. In those circumstances, it might be considered difficult to infer that such errors as Mr. Rogers made in preparing his list supported an inference that he intended to defeat or delay creditors. This in my opinion raises the question of whether Ms. Wentworth established that Mr. and/or Mrs. Rogers had no belief that there was an agreement between them in terms of what has been called “the understanding”.
It is true that there was no evidence from them of any particular document or conversation that could give rise to such an agreement. However, there was evidence from Mrs. Rogers that this was what she understood to be in place between them. The evidence from Mr. Rogers was less direct: he accepted that the only agreements as to payment of legal costs by Mrs. Rogers were the documents of 1981 and 1983, but he said that Mrs. Rogers said she would help him in every way possible, implicitly including payment of legal costs; and that their agreement was that he pay for all living expenses with his income. It was open to infer that his belief was that, since his income was to be used to pay living expenses and Mrs. Rogers would help by paying legal costs, money used to pay legal costs was to be treated as her money. In considering whether these were beliefs they could reasonably have held, it is pertinent to have regard to the respective contributions that had been made to family finances and were being made to the family finances as at late 1993 and early 1994.
Over the thirteen years from the year ended 30 June 1982 to 30 June 1994, the total net income before tax earned by Mrs. Rogers was about $322,000.00, compared with about $103,000.00 for Mr. Rogers. That averages out at about $25,000.00 per annum for Mrs. Rogers and about $8,000.00 for Mr. Rogers. Over the five years from the year ended 30 June 1990 to 30 June 1994, the total net income before tax of Mrs. Rogers was about $217,000.00, and for Mr. Rogers was about $41,000.00. This averages out at about $43,000.00 per annum for Mrs. Rogers and about $8,000.00 per annum for Mr. Rogers. It is true that in the early years significant capital contributions were made by Mr. Rogers: about $180,000.00 in 1981, about $5,000.00 in 1982, about $6,100.00 in 1983, and about $10,000.00 in 1986. However, there were substantial capital contributions by Mrs. Rogers, in particular $69,000.00 in 1983 and apparently about $510,000.00 in 1991. The evidence did not reveal very much about that contribution and what happened to it.
In all those circumstances, even in the absence of evidence as to a document or conversation that could give rise to an agreement in terms of the understanding, I do not think the judge’s finding that there was an agreement that Mr. Rogers’ income would generally be expended in maintaining the family and Mrs. Rogers would fund the payment of legal costs and associated expenses is shown to be an error. Certainly I do not think it was proved that there was no such agreement; much less was it proved that Mr. and Mrs. Rogers did not believe that there was such an agreement.
On this analysis, on the best accounting that can be done without “the understanding” there was a debt of around $82,500.00 and an agreement from Mrs. Rogers to meet a further $23,000.00; while if “the understanding” did amount to an agreement with legal effect, there was a debt of $132,750.00 plus an agreement by Mrs. Rogers to meet a further $14,000.00.
Mr. Robb submitted that the primary judge erred in not deciding whether the $40,000.00 paid by Mr. Rogers to Mrs. Rogers in about 1983 was a gift or a loan, and working out the consequences of this. However, if it was a gift, as Mr. Rogers asserted, this could not affect the analysis; and it could not have any material effect on Mrs. Rogers’ credit, having regard to the ambiguity that may attend such transactions between spouses. If it was a loan, it could be said that some of the payments of legal expenses were repayments of a loan and not such as to be caught by the 1981 agreement. But it was not shown that Mr. Rogers did not believe it was a gift, or that he had reason to believe that some payments of legal costs were repayment of a debt to him; and it was not shown that in 1993 and 1994, Mrs. Rogers should have adverted to the possibility that some of the items on the list prepared by Mr. Rogers should be considered as repayments of this loan. In those circumstances, no error by the judge in this respect is shown.
The question then is, in all these circumstances, were errors in the list, and the making of the acknowledgement of debt of $130,000.00, and the giving of security for it so as to reduce Mr. Rogers’ share of joint property, as promised in July 1981, such as to support an inference of intent to defeat or delay creditors?

Although the primary judge did say that Ms. Wentworth alleged that the mortgage was a sham, that there was a conspiracy, that various documents were forgeries, and so on, he did also directly address the question whether it was proved that Mr. Rogers had an intent to defraud creditors. He concluded that this was not proved. Having regard to his own reasons, and to the analysis I have undertaken, in my opinion he has not been shown to have been in error in so concluding. A conclusion that Mr. Rogers was not shown to have been doing anything other than attempting to work out what he owed his wife, and to carry through what had been agreed in 1981, was well open; and the judge’s finding to this effect is not vitiated by error or inadequacy in the reasons.
Having regard to that conclusion, the question whether Mrs. Rogers was protected by s.37A(3) does not arise. However, again having regard to the analysis I have undertaken, I do not think that her acceptance of the list provides any basis for concluding that she entered into the transaction otherwise than bona fide believing that she was owed this money and that she was entitled to the transaction having regard to the agreement of July 1981. The primary judge’s findings amount in substance to a finding that she was acting bona fide and had no notice of any intention to defraud creditors. In my opinion also, she was a purchaser in the sense that she had given consideration pursuant to the 1981 agreement entitling her to a reduction in Mr. Rogers’ share of the joint property and a consequent increase in her share, and this transaction was a convenient way of giving effect to that entitlement. She may also have been a purchaser in the sense that she forebore from demanding payment in cash, and also impliedly undertook to give further support; but it is not necessary to decide this. In those circumstances, in my opinion, and even if the onus of proof lay on her (as I believe it does), Mrs. Rogers would have the protection of s.37A(3).
I would add one further comment. Even if the 1994 transactions were set aside, the 1981 document would itself, in my opinion, give rise to an equitable charge in favour of Mrs. Rogers over Mr. Rogers’ interest in joint property, to the extent of at least about $82,500.00 in 1994. To this would be added post-1994 contributions by Mrs. Rogers to Mr. Rogers’ legal costs, and interest at about 12% per annum, giving a total today much in excess of $130,000.00.
For those reasons, in my opinion the appeal should be dismissed with costs.
On behalf of Mrs. Rogers, an application was made for indemnity costs, of the hearing below and the appeal. There was no cross-appeal, and so no basis for altering the order for costs below. I do not think the appeal, as argued by Mr. Robb, was such as to attract indemnity costs. The result may have been different if all the points initially raised in the Notice of Appeal and written submissions had been pursued. In my opinion, no order for indemnity costs should be made.
SANTOW JA: I agree with Hodgson JA.
HISLOP J: I agree with Hodgson JA.
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LAST UPDATED: 07/12/2004