CITATION: ZARAVINOS v HOUVARDAS [2004] NSWCA 421 HEARING DATE(S): 10 August 2004 JUDGMENT DATE:
24 November 2004JUDGMENT OF: Handley JA at 1; Sheller JA at 2; Ipp JA at 78 DECISION: Appeal dismissed with costs. CATCHWORDS: S37A CONVEYANCING ACT 1919 - alienation of property - whether transfer of three properties from husband to former wife were not made in good faith and were made with the intention of defrauding creditors - whether appellant beneficial owner by way of resulting trust - effect of sequestration order - whether respondent 'person prejudiced' for the purposes of s37A - res judicata - whether s37A inconsistent with Bankruptcy Act - effect of open offer of settlement equalling amount of debt - costs LEGISLATION CITED: Bankruptcy Act 1966
Conveyancing Act 1919
De Facto Relationship Act 1984
District Court Act 1973
Family Law Act 1975
Marine Act 1928
Matrimonial Causes Act 1959
Navigation Act 1912 (Cth)CASES CITED: Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Brady v Stapleton (1952) 88 CLR 322
Cannane v J Cannane Pty Ltd (1998) 192 CLR 557
Ex parte McLean (1930) 43 CLR 472
Fountain v Alexander (1982) 150 CLR 615
Fraser v Deputy Commissioner of Taxation (1996) 69 FCR 99
Hillman v Hillman (1977) 2 NSWLR 739
Miller v Bury (1986) 4 NSWLR 716
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
R v Credit Tribunal ex parte GMAC (1977) 137 CLR 545
Re Baxter; Ex parte Official Receiver v Baxter (1986) 10 FCR 398
Silvera v Savic (1999) 46 NSWLR 124
State of Victoria v Commonwealth of Australia (1937) 58 CLR 618 (The Kakariki)
The Queen v Ross-Jones; ex parte Green (1984) 156 CLR 185
Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1PARTIES :
Ourania Zaravinos - Appellant
Nick Houvardas - First Respondent
Official Trustee in Bankruptcy - Second Respondent
Attorney-General of NSW - IntervenorFILE NUMBER(S): CA 41104/03 COUNSEL: M R Aldridge SC - Appellant
R McCrudden - First Respondent
Submitting appearance - Second Respondent
M Sexton SC (Solicitor-General)/N Perram/N Bilinsky - IntervenorSOLICITORS: Horowitz & Bilinsky - Appellant
Mecuri & Co - First Respondent
Sally Nash & Co - Second Respondent
NSW Crown Solicitor (NSW Attorney-General) - Intervenor
LOWER COURTJURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): 4177/99 LOWER COURT
JUDICIAL OFFICER :Bergin J
CA 41104/03
ED 4177/99HANDLEY JA
SHELLER JA
IPP JA
ZARAVINOS v HOUVARDAS
In July 1995, Mr Houvardas, the respondent, began proceedings in the District Court against Mr Zaravinos to recover money, which had been paid to Mr Zaravinos for investment in shares and securities on the respondent’s behalf. Judgment was entered for Mr Houvardas in October 1998 and he commenced bankruptcy proceedings against Mr Zaravinos on 11 October 1999. A sequestration order was made against the estate of Mr Zaravinos on 21 February 2000. On 28 August 2001 in the Federal Court, Gyles J gave leave to the respondent to proceed against the estate of…
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Details
- AGLC
- Zaravinos v Houvardas [2004] NSWCA 421
- Case
- [2004] NSWCA 421
- Decision Date
CaseChat Overview and Summary
The appeal in *Zaravinos v Houvardas* concerned the validity of transfers of three properties from a husband to his former wife. The respondent, a creditor, sought to set aside these transfers under section 37A of the Conveyancing Act 1919 (NSW), alleging they were made in bad faith and with the intention of defrauding creditors. The appellant, the former wife, contended she was the beneficial owner of the properties by way of a resulting trust, and that the transfers were therefore not fraudulent.
The Court of Appeal was required to determine several key legal issues. These included whether the transfers were made with the intent to defraud creditors, whether the appellant held a beneficial interest in the properties through a resulting trust, and the effect of a sequestration order on the appellant's claim. The court also considered whether the respondent qualified as a "person prejudiced" for the purposes of section 37A, the application of the doctrine of res judicata, and whether section 37A was inconsistent with the provisions of the Bankruptcy Act 1966 (Cth). The impact of an open offer of settlement equivalent to the debt amount was also a point of consideration.
The court reasoned that the transfers were indeed made with the intention of defrauding creditors, and that the appellant had not established a resulting trust over the properties. The sequestration order was found to have significant implications for the appellant's claim. The court held that the respondent was a person prejudiced by the transfers and that section 37A was not inconsistent with the Bankruptcy Act. The doctrine of res judicata was also applied against the appellant.
The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.
The Court of Appeal was required to determine several key legal issues. These included whether the transfers were made with the intent to defraud creditors, whether the appellant held a beneficial interest in the properties through a resulting trust, and the effect of a sequestration order on the appellant's claim. The court also considered whether the respondent qualified as a "person prejudiced" for the purposes of section 37A, the application of the doctrine of res judicata, and whether section 37A was inconsistent with the provisions of the Bankruptcy Act 1966 (Cth). The impact of an open offer of settlement equivalent to the debt amount was also a point of consideration.
The court reasoned that the transfers were indeed made with the intention of defrauding creditors, and that the appellant had not established a resulting trust over the properties. The sequestration order was found to have significant implications for the appellant's claim. The court held that the respondent was a person prejudiced by the transfers and that section 37A was not inconsistent with the Bankruptcy Act. The doctrine of res judicata was also applied against the appellant.
The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.
Orders
Orders of the court
Appeal dismissed with costs.
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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