Recent Cases

Zreika v Royal [2019] FCAFC 82 (23 May 2019) (Besanko, Farrell and O’Callaghan JJ)


BANKRUPTCY AND INSOLVENCY — six appeals from orders of a judge of the Federal Court of Australia — where the first, second and third respondents sought relief before the primary judge under s 37A of the Conveyancing Act 1919 (NSW) and s 121 of the Bankruptcy Act 1966 (Cth) in relation to transfers of shares in various companies and dispositions of various properties — where the respondents concede that the declarations made by the primary judge in relation to the dispositions of various properties could only be made under s 37A of the Conveyancing Act

CONVEYANCING — whether the primary judge erred in finding that dispositions of various properties were made for nominal consideration with the intent to defraud the creditors of the appellant in NSD 1798 of 2016 for the purposes of s 37A of the Conveyancing Act — where the primary judge made adverse credit findings against the appellants — where the appellants did not directly challenge the primary judge’s adverse credit findings on appeal — whether the primary judge erred in distinguishing Cannane v J Cannane Pty Ltd (in liq) (1998) CLR 357

PRACTICE AND PROCEDURE — whether the appellant in NSD 1801 of 2016 is entitled to raise a new defence relying on Brady v Stapleton (1953) 88 CLR 322 on appeal — whether the appellant is raising a new legal issue on appeal or appealing against an order on the basis that the primary judge’s decision was wrong for want of jurisdiction

CONVEYANCING — whether Brady v Stapleton is authority for the proposition that a finding pursuant to s 37A(3) of the Conveyancing Act in favour of a bona fide purchaser for value extends not only for the benefit of that purchaser but also for the benefit of the assignee of the fraudulent debtor — whether Brady v Stapleton is authority for the proposition that, once a property has been on-sold, no personal liability can lie against the assignee by the assignor because the assignment was valid at the time it occurred, even where the assignee had full knowledge of the fraudulent intent

CORPORATIONS — where the primary judge refused to approve a deed pursuant to s 477(2A) of the Corporations Act 2001 (Cth) — whether the order by the primary judge refusing approval of the deed was an interlocutory order — whether the primary judge’s refusal to approve the deed is attended with sufficient doubt to warrant it being reconsidered

COSTS — whether the primary judge erred in exercising a discretion to make a lump sum order for costs on a joint and several basis — whether the primary judge erred in rejecting the submission that the respondents were not legally obliged to pay any legal costs to their solicitors — consideration of the indemnity principle — where the primary judge found that the respondents’ obligation to pay costs was a contingent liability