Marcolongo v Chen [2011] HCA 3

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HEYDON, CRENNAN AND BELL JJ

LEONILDA MARCOLONGO APPELLANT

AND

YU PO CHEN & ANOR RESPONDENTS

Marcolongo v Chen [2011] HCA 3

9 March 2011

S114/2010

ORDER

1. Appeal allowed.

2. Dismiss the summons filed by the second respondent seeking to file a notice of contention out of time.

3. Set aside paragraphs 1, 2, 3, 4 and 5 of the order of the New South Wales Court of Appeal made on 12 November 2009, and in their place order that:

(a) the appeal to the New South Wales Court of Appeal be dismissed;

(b) Yu Po Chen pay Leonilda Marcolongo's costs in the New South Wales Court of Appeal; and

(c) the sum of $60,000 paid into the New South Wales Supreme Court by Yu Po Chen as security for Leonilda Marcolongo's costs in the New South Wales Court of Appeal, together with interest thereon, be paid out forthwith to Leonilda Marcolongo's solicitor.

4. The first and second respondents pay the appellant's costs of the appeal to this Court.

5. The second respondent pay the appellant's costs of the summons filed by the second respondent seeking to file a notice of contention out of time.

On appeal from the Supreme Court of New South Wales

Representation

T A Alexis SC with D H Mitchell for the appellant (instructed by Dunstan Legal)

No appearance for the first respondent

T S Hale SC with D J A Mackay for the second respondent (instructed by Unsworth Legal Pty Ltd)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Marcolongo v Chen

Real property – Conveyancing – Conveyancing Act 1919 (NSW), s 37A – Voluntary alienation to defraud creditors – Appellant sought to set aside registered transfer of land from second respondent to first respondent – Whether intent to defraud creditors satisfied by proof of "actual" or "predominantly" fraudulent intent – Whether satisfied by proof that transfer would "delay, hinder or defraud" creditors – Whether intent may be inferred where transfer is voluntary.