SILVERA V. SAVIC & ANOR. [1999] NSWSC 83

Reported Decision : 46 NSWLR 124

New South Wales Supreme Court CITATION : SILVERA V. SAVIC & ANOR. [1999] NSWSC 83 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : No.4290 of 1996 HEARING DATE(S) : 14th and 15th December 1998 JUDGMENT DATE : 19 February 1999

Iris Silvera Plaintiff PARTIES : Victor Savic 1st Defendant Cveta Arsenic 2nd Defendant JUDGMENT OF : Hodgson CJinEq

Mr. C. Harris for plaintiff COUNSEL : Mr. M. Aldridge for 2nd defendant No appearance for 1st defendant SOLICITORS : Simpson & Harrison, Kogarah for plaintiff Horowitz & Bilinsky for 2nd defendant CATCHWORDS : FRAUDULENT CONVEYANCES - JUDGMENTS AND ORDERS - REAL PROPERTY (TORRENS SYSTEM). Shortly after District Court proceedings are served on male defendant, he seeks and obtains a consent order under the De Facto Relationships Act in the Local Court for the transfer to the female defendant of two properties which comprise substantially all his assets, and the required transfers of those properties are registered under the Real Property Act. Plaintiff obtains judgment in the District Court, and seeks orders under s.37A of the Conveyancing Act avoiding the transfer. HELD that the male defendant in seeking and obtaining the Local Court order and effecting the transfers intended to defraud creditors; that the female defendant shared that intention, so would not have the protection of the indefeasibility provisions of the Real Property Act; (semble) that in any event s.37A prevailed over those provisions; that although an order avoiding the transfers would be inconsistent with the Local Court order, the Court could mould its order to avoid the transaction so that it was not inconsistent, for example by ordering a re-transfer of the properties; (semble) that s.37A empowered the Court to set aside the Local Court order obtained as part of an alienation to defraud creditors; and that the Court could order the defendants to apply to the Local Court to set aside the order. Re Baxter (1986) 10 FamLR 758 and Morris v. Maroudas (1986) 70 ALR 98 distinghished. Conveyancing Act 1919 s.37A De Facto Relationships Act 1984 ss.10 12 ACTS CITED : 18 Local Courts (Civil Claims) Act 1970 ss.12 69 84 DECISION : See par.80 of judgment