Super Vision Resources Ltd v AC Holdings Co Pty Ltd (No 2) [2021] NSWCA 14

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Super Vision Resources Ltd v AC Holdings Co Pty Ltd (No 2) [2021] NSWCA 14 Hearing dates: On the papers (written submissions of appellant dated 23 December 2020 and 4 February 2021 and of respondents dated 22 and 29 January 2021) Decision date: 22 February 2021 Before: Basten JA; Meagher JA; White JA Decision: (1) Grant the appellant, Super Vision, leave pursuant to Bankruptcy Act 1966 (Cth), s 58(3) to commence and continue this appeal against the third respondent, Lawrence Xu. (2) Allow the appeal. (3) Set aside order 1 made by the primary judge on 21 February 2020 (that order encapsulating paragraphs 1 and 3 of Short Minutes of Order dated 21 February 2020). (4) Declare that the transfers of the Sandringham and Milsons Point properties from Lawrence Xu to AC Holdings on 19 September 2018 by Registered Dealings Nos AN717583 and AN717636 were alienations of property made by Lawrence Xu with intent to defraud creditors within the meaning of Conveyancing Act 1919 (NSW), s 37A. (5) Declare that as between AC Holdings and Lawrence Xu those transfers are void, it not being established that at the time of those transfers AC Holdings was a purchaser in good faith not having notice of Lawrence Xu's intent to defraud creditors. (6) Order that Super Vision, AC Holdings and Qiao Wang forthwith cause the credit balance of the Controlled Moneys Account (as defined in the joint undertakings given to this Court and dated 26 June 2020) to be paid to the trustee-in-bankruptcy of Lawrence Xu. (7) Order that AC Holdings and Qiao Wang pay to the trustee-in-bankruptcy of Lawrence Xu the amount of $197,373, being the sum of three payments made to AC Holdings and Qiao Wang from the Controlled Moneys Account for the payment of legal fees incurred by them in their defence of Super Vision's claim. (8) Order that AC Holdings, Lawrence Xu and Qiao Wang pay Super Vision's costs of the proceedings at first instance, assessed on the ordinary basis. (9) Order that AC Holdings and Qiao Wang pay Super Vision's costs of the appeal, assessed on the ordinary basis. (10) Stay the operation of orders (6) and (7) for 14 days after the day on which these orders are entered. (11) Direct that any notice of motion seeking a stay and any affidavit and submissions in support be filed and served within 10 days after the day on which these orders are entered. At the same time copies of those documents should be provided to the Associate to Meagher JA. On receipt of those documents the Court will make directions for the determination of the motion. Catchwords: CONVEYANCING – transfers in fraud of creditors – Conveyancing Act 1919 (NSW), s 37A – where property transferred sold by transferee – where part of proceeds of sale used to pay legal costs of transferee subject to undertaking to repay if appeal allowed – consequential orders and declarations COSTS – orders when proceedings involve multiple parties – where no relief sought against one defendant – where that defendant joined in defence with other defendant – whether to order plaintiff's costs be paid by those defendants jointly COSTS – offers of compromise/Calderbank offers – whether time allowed for consideration of offer reasonable Legislation Cited: Conveyancing Act 1919 (NSW), s 37A Cases Cited: Perisher Blue v Nair-Smith (No 2) [2015] NSWCA 268 Super Vision Resources Ltd BVI Registered No 1810534 v AC Holdings Co Pty Ltd [2020] NSWCA 319 Super Vision Resources Ltd v AC Holdings Co Pty Ltd [2020] NSWCA 244 Category: Consequential orders Parties: Super Vision Resources Ltd BVI Registered No 1810534 (Appellant) AC Holdings Co Pty Ltd (First Respondent) Qiao Wang (Second Respondent) Lawrence Xu (Third Respondent) Representation: Counsel: J P Knackstredt (Appellant) B M Zipser (First and Second Respondents)