Ivanovski v Keith Stevens McConnell as representative of the estate of Walter Perdacher (deceased) [2009] NSWSC 1036

New South Wales Supreme Court

CITATION : Ivanovski v Keith Stevens McConnell as representative of the estate of Walter Perdacher (deceased) [2009] NSWSC 1036

HEARING DATE(S) : 17, 18, 19 August 2009

JUDGMENT DATE : 30 September 2009

JUDGMENT OF : Hammerschlag J

DECISION : Judgment for the plaintiffs against the first defendant in the amount of $3,536,846.04 to be adjusted to bring the amount up to date. Order for the transfer of Lot 153 on Registered Plan 144770 with registered dealing number 709 266 213 in the Queensland Land Registry to be set aside and for the second defendant to sign all such documents as are necessary to effect the transfer of an undivided one half share in Lot 153 on Registered Plan 144770 to the estate of the late Walter Perdacher as tenant in common. Proceedings against the second defendant otherwise dismissed.

CATCHWORDS : CONTRACT – loan – debtor defaults in payment of interest – creditors terminate loan agreement – creditors entitled to judgment for amount of interest payments accrued due before termination and damages for loss of bargain – REAL PROPERTY – claim under s 228 of the Property Law Act 1974 (Qld) ("the Act") that alienation of property was made with intent to defraud creditors – second defendant and her deceased husband owned real property as joint tenants – deceased transferred his interest to second defendant – transfer records that consideration was natural love and affection – at the time deceased owed plaintiffs significant sum of money – order sought for retransfer to the deceased estate of his interest – second defendant put that order for retransfer would be of no utility because on retransfer deceased share would pass to her by right of survivorship – second defendant also asserts that interest was conveyed to her for valuable consideration and in good faith under s 228(3) of the Act – held transfer with fraudulent intent established – order is of utility – Court can achieve the effect of avoiding the alienation by appropriate measures in the particular case – held second defendant failed to make out transfer was for valuable consideration and in good faith.