El Zakhem v Tadros [2010] NSWSC 159 (11 March 2010)

Last Updated: 23 December 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
El Zakhem v Tadros [2010] NSWSC 159


JURISDICTION:


FILE NUMBER(S):
2008/281445

HEARING DATE(S):
22, 23 and 24 February 2010

JUDGMENT DATE:
11 March 2010

PARTIES:
Bassam El Zakhem (Plaintiff)
George Tadros (First Defendant)
Joseph Tadros (Second Defendant)

JUDGMENT OF:
Smart AJ

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
N Obrart (Plaintiff)
No appearance (First Defendant)
M Southwick (Second Defendant)

SOLICITORS:
Allied Lawyers (Plaintiff)
No appearance (First Defendant)
Mitry Lawyers (Second Defendant)


CATCHWORDS:
Substituted Service not bringing proceedings to notice of 1st Defendant, G
dispensing with service on G who no longer had effective interest in proceedings
application under s 37A Conveyancing Act
dispositions to defeat creditors
G holds property under qualified title
devise to G of modest suburban house subject to right of residence of deceased's wife
G seeks to borrow money and co-opts assistance of brother (J)
G liable for damages for assault of plaintiff
G has other creditors
G had intent to defeat creditors
inferred J probably realised G had a number of creditors, needed a substantial sum and mortgages granted would adversely effect creditors of G
J becomes a borrower and later purchases property from G
assessment of value of G's interest subject to conditions
use of Australian Bureau of Statistics life expectancy tables for females

LEGISLATION CITED:
Conveyancing Act 1919

CATEGORY:
Principal judgment

CASES CITED:
Cannane v J Cannane Pty Ltd; Cannane v Official Trustee in Bankruptcy [1998] HCA 26; 192 CLR 557
Chen v Marcolongo; Chen v Lym International Pty Ltd [2009] NSWCA 326
Silvera v Savic [1999] NSWSC 83; (1999) 46 NSWLR 124

TEXTS CITED:


DECISION:
Further inquiries and arrangements for medical report and valuation.
Short Minutes of Orders to be settled.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION



Smart AJ

Thursday 11 March 2010


2008/281445 Bassam El Zakhem v George Tadros and Joseph Tadros
(Renumbered from 5508/2008)

JUDGMENT

1 On 23 November 2007 the plaintiff obtained a verdict of $333,217.50 in the District Court against George Tadros, being damages for an assault which occurred on 25 December 2004. The plaintiff has not been able to obtain payment of any part of the damages.

2 By his Summons filed 3 November 2008 the plaintiff sought, pursuant to s 37A Conveyancing Act 1919, a declaration that George Tadros alienated property, a suburban house at Granville, with intent to defraud the plaintiff, and declarations that the transfer of 15 November by George Tadros to George Tadros and Joseph Tadros and that of 14 February 2008 from George Tadros and Joseph Tadros to Joseph Tadros were void ab initio. An order was sought that Joseph Tadros transfer the property to the plaintiff.

3 George Tadros could not be served. An order for substituted service was obtained and complied with, but it was apparent that these proceedings probably never came to the notice of George Tadros and I dispensed with service of the Summons upon him. He could not be located and his whereabouts were and are still unknown. There is no known way of contacting him or bringing matters to his attention. That has been the position since November 2008. He no longer has any interest in the property and the outcome of the proceedings, while technically affecting him, is probably of little or no interest to him. Inserting an advertisement in the newspaper would be of no use.

4 On the matter being listed on 25 November 2009 before the Chief Judge in Equity she directed:

“If the plaintiff wishes to amend his Summons notification must be given to the defendants by no later than 30 November 2009, together with a draft amendment.”

George Tadros was neither represented nor present but Joseph Tadros was present and legally represented.

5 The plaintiff filed an Amended Summons on 16 December 2009. More elaborate relief was sought. The plaintiff sought relief under s 37A of the Conveyancing Act and included seeking a transfer of the interest of the second defendant in the property to the plaintiff, a declaration of trust (constructive) and an equitable charge. Joseph Tadros protested that neither the Chief Judge nor any one else in the Supreme Court had given the plaintiff leave to file the Amended Summons and that, as fraud was being alleged, there should be pleadings. When the matter came before me on Monday 22 February 2010 I directed the plaintiff to deliver Points of Claim and the defendant to deliver Points of Defence. This occurred and the hearing resumed on 23 February 2010. Counsel for Mr Joseph Tadros submitted that the Points of Claim were deficient. However, there was a relatively small amount of money involved and he did not want the hearing deferred.

6 The factual background is as follows. On 23 June 2006 Joseph Tadros Snr died. On 10 October 2007 Probate of his last will was granted to the Executor named in the will, George Tadros. After appointing George Tadros to be his executor and trustee, the testator provided in clauses 3 and 4:

“3. I give Devise and Bequeath the whole of my estate both real and personal of whatsoever nature and kind wheresoever situate to my son GEOGE TADROS subject to the following conditions:

(a) My wife NAZHA TADROS shall be entitled to reside in our matrimonial home for as long as she lives or for as long as she wishes to reside there.

(b) My son George shall pay all the outgoings in respect of the said matrimonial home.

(c) My son George shall within six (6) months of my death pay the sum of Ten Thousand Dollars ($10,000.00) to each of my other children ANTHONY (TONY), NANCY, JOSEPH, ANNE and DIANE.

4. (a) If my son George fails to survive me then subject to paragraph 4(b) I give the whole of my estate both real and personal of whatsoever nature and kind and wheresoever situated to my children in equal shares and if any child of mine (including George) dies before me leaving children then those children shall on attaining their majority take equally the share their parent would otherwise have taken.

(b) My wife NAZHA TADROS shall be entitled to reside in our matrimonial home for as long as she lives or for as long as she wishes to reside there and my beneficiaries shall pay all the outgoings in respect of the said matrimonial home.”

7 The Exemplification of Probate contained an Inventory of Property of the Estate of Joseph Tadros deceased which disclosed that there was but one asset, namely the suburban house at Granville, with an estimated or known value of $140,000.00.

8 I took the view that there had been a devise of the property to George Tadros but it was subject to the right of personal residence of Nazha Tadros. On the correct construction of the will the widow was not given a life estate. I have not overlooked the other conditions, i.e. payments of all outgoings in respect of the property and payment within six months of pecuniary legacies to the other five children of the deceased.

9 A Statement of Claim was issued out of the District Court about 2 May 2007 claiming damages for assault. This Statement of Claim was served upon George Tadros, but he neither appeared nor filed a defence. Interlocutory judgment was entered in favour of the plaintiff on 24 July 2007. After a number of mentions before a Registrar, the claim was set down for a damages hearing on 6 November 2007. The defendant was notified by letter. During the morning of 5 November 2007 an application was made on behalf of George Tadros to vacate the assessment and to set aside the default judgment. An application for an adjournment was foreshadowed. An adjournment was granted and the Judge stood the matter over to 15 November 2007. The Judge declined to entertain an oral application for a Mareva injunction. On 15 November 2007 the plaintiff sought an adjournment and the hearing was adjourned to 23 November 2007. On that day the Judge refused to set aside the default judgment and assessed damages at $333,217.50. Judgment was entered accordingly.

10 Mr Joseph Tadros said that, in about November 2007, his brother George spoke to him. That was probably in early November 2007, having regard to the documents of 8 November 2007. Joseph Tadros stated that this was said:

“George: I am in financial difficulty; I have a lot of debts and need to borrow some money in order to move out of Sydney. I will need you to guarantee the loan if I am to get any money.

Joseph: How much do you need?

George: Approx $50,000 - $100,000.

Joseph: I think we should borrow as much as possible so I can use some of the money too. I am having trouble with my business and tax debts. We can also use some of the money to fix up the place for Mum.

George: I don’t care what you do with the money as long as I get what I need.”

11 Joseph said that the finance broker told them that, as Joseph was the sole income earner, he would need to be a joint borrower to show that the loan could be properly serviced and that Joseph would need to acquire at least a one per cent interest in the property. Joseph had an income and George did not. The valuation of the property was $300,000.00.

12 The effect of a transfer bearing date 15 November 2007 in terms from George to George and Joseph was that George transferred to Joseph a 1% share in the property for a stated consideration of $3,000.00. By mortgage bearing date 15 November 2007, George and Joseph executed a mortgage in favour of MDN Mortgages Pty Ltd. The principal sum was $210,000.00 and the principal, or so much as remained unpaid, had to be paid on 1 December 2008. It was intended and anticipated that the mortgage advance would be paid to Joseph and that Joseph would make all payments under the mortgage.

13 On settlement of the loan Joseph Tadros received a cheque for $199,689.24, being the advance less deduction of various amounts including interest. Joseph Tadros probably did not pay $3,000.00 to George and put the sum of $199,689.24 in an account in his name.

14 Joseph said that at the end of November 2007 George stated that he needed $30,000.00 out of the money borrowed, that he had financial problems and needed to pay them off. Joseph asked George to wait a bit longer as Joseph needed to work our how much to use for the house and how much he needed for tax. The house was in need of renovation.

15 Joseph said that during the Christmas period (of 2007) he visited his mother and while at the house he found a Market Appraisal prepared by the estate agents, Laing & Simmons for George and an Exclusive Agency Agreement between George Tadros and JJ Michael Real Estate Pty Ltd, trading as Laing & Simmons, Merrylands and a letter from the agents to Macquarie Lawyers requesting the preparation of a Contract for Sale. About 18 January 2008 Macquarie Lawyers forwarded a proposed contract for sale to Laing and Simmons. Joseph said that he became concerned that George was attempting to sell the family home and that his mother would have nowhere to live. Joseph said that in late January he held this discussion with George:

“Joseph: George what the hell are you doing. Have you gone nuts, if this is what you must do then take it off the market. I will buy the house, and Mum can stay in it, as our father would have wanted.

George: I don’t care what you want to do, if you want to buy it, you can buy it.

Joseph: We will get the house valued and work out a price from there.”

16 In his oral evidence Joseph said that he asked George why he wanted to sell the property and that George replied that he just wanted to get out, that he did not want to have anything to do with the property any more, that he could not look after the property, that he could not look after their mother. Joseph said that he told George to take the property off the market, that he (Joseph) would buy the property and take responsibility (for the property and providing their mother with a home and looking after her). That was what happened. The conversations deposed to by Joseph probably occurred.

17 Citigroup valued the property at $330,000.00 and agreed to advance $264,000.00 to Joseph on the security of the property.

18 By transfer bearing date 14 February 2008 George Tadros and Joseph Tadros transferred their interest in the property to Joseph Tadros for a stated consideration of $330,000.00. Joseph did not pay $330,000.00 or any sum approaching that amount to George. By mortgage bearing date 14 February 2008 Joseph Tadros mortgaged the property to Citigroup Pty Ltd. The settlement figures set out in the letter of 13 February 2008 of Macquarie Lawyers show how the sum of $263,130.00 was disbursed. They reveal that $38,949.57 was paid to George Tadros and $210,840.58 was paid to MDN Mortgages Pty Limited.

19 The plaintiff pointed out that Mr George Tadros had received a small portion of the purchase price. Mr Joseph Tadros replied that he took the property subject to the personal right of residence of the mother (or a life estate), the obligation to pay outgoings and the obligation to pay pecuniary legacies of $40,000.00. He had also paid out the existing mortgage.

20 On receipt of the balance of the Citibank advance Joseph said he made a payment to the ATO and used some of the money to buy parts and products for his business. Joseph said that the current amount in the Citibank mortgage account is about $160,000.00 to $170,000.00. It is not clear how this sum is calculated, but it may be the balance left out of the sum of $199,689.24 previously paid into an account in the name of Joseph Tadros with a bank in Queensland or a subsidiary from the MDN Mortgage advance. It seems that the amount of $199,859.93 was placed in a Queensland Bank Account and that $195,000.00 was transferred into the loan account of Joseph Tadros with Citibank about 23 April 2008.

21 At this stage I will deal with the evidence as to service or attempted service of the initiating Summons. That evidence also bears upon the substantial merits.

22 It proved practically impossible to serve George Tadros with the initiating Summons. On 6 August 2009 a Registrar made these orders:

“1. That time for service of the Summons be extended to 21 August 2009;

2. The service of the Summons on the First Defendant be effected by posting a sealed copy to him in care of the Second Defendant at [the property at Granville] 2142 together with a letter requesting the second defendant bring the documents to the attention of the first defendant.”

23 On 13 August 2009 the solicitor for the plaintiff wrote and posted to George Tadros care of Mr Joseph Tadros, at the Granville property, a sealed copy of the Summons, a sealed copy of Court’s order of 6 August 2009 and a letter to Joseph Tadros requesting him to bring the documents to the attention of George Tadros.

24 In her affidavit of 25 August 2009 Jane Dabit, a solicitor in the employ of Macquarie Lawyers, deposed to a conversation on 6 August 2009 with Mr D Hill, from the office of the city agent of the plaintiff’s solicitor. He reminded her that the matter was in the Registrar’s List and told her that the plaintiff had filed an application for substituted service on the first defendant. During a conversation a little later that morning, Ms Dabit asked Mr Hill to mention her firm’s appearance, stated that they consented to the adjournment for 4 – 6 weeks and added, “If any discussions arise in relation to substituted service please make the following submission to the Court on our behalf: ‘We have no knowledge of the whereabouts of the First Defendant’.”

25 Ms Dabit said that she did not indicate that the second defendant consented to the order for substituted service that was made. That is probably correct.

26 On 25 July 2009 the plaintiff, Tania, his daughter, and Christopher Bashour respectively each swore a separate affidavit that when the deponent attended the District Court on 23 November 2007 that deponent saw both defendants at the District Court and other members of the Tadros family.

27 In his oral evidence the plaintiff said that he had known Mr George Tadros for five or six years prior to the District Court hearing on 23 November 2007. The plaintiff said he saw Joseph Tadros and other members of the Tadros family except the mother at the District Court. The plaintiff said that the members of the Tadros family were sitting opposite to him inside the Court and that he identified Joseph Tadros to his daughter, Tania and Mr Bashour. The plaintiff said that he had known Joseph Tadros for a long time, that he saw him on one occasion prior to the court date of 23 November 2007 and again near his brother’s house. He added that he had known the Tadros family for a long time as he had repaired their washing machine. Further, Mark, the husband of Diana, was his friend. Diana (or Dianne) was the sister of George and Joseph. The plaintiff said that he had known Joseph Tadros for 15 years and more before 23 November 2007, “Since I came ... since he had the shop in Liverpool”.

28 Tania was 16 years of age as at 23 November 2007. She said that she did “not really” speak with her father about who was present in Court. She had met Mr Joseph Tadros once prior to 23 November 2007 and that was on the day of the incident (25 December 2004) when she was aged 13. She remembered that most of the Tadros family were present at the Court, but she did not remember specifically which members of that family were present. She said that on 23 November 2007 Joseph and George were present.

29 When it was put to Tania that she was wrong about Joseph Tadros being present at Court on 23 November 2007 she replied that she did not know if Joseph was present on the day of the incident.

30 Tania said she was not sure how she knew it was Mr Joseph Tadros that she saw in Court in November 2007. When asked if the only way she could identify the person present as Joseph Tadros was because other people told her, Tania replied, “Like, yeah”.

31 This evidence appears in Tania’s cross-examination:

“Q. So the position is that on 23 November 2007 there was a man present that you think was Mr Joseph Tadros?

A. Probably, yeah.

Q. Who you might have met once previously on the day when your father was assaulted?

A. Right.

Q. But you and correct me if I'm wrong didn't discuss with your father or anyone that day who was present in court?

A. No.

Q. And it was not until some 18 months later that you identified the second defendant as being present in court on 23 November 2007?

A. Right.”

32 Even allowing for the difficulties, this was not satisfactory evidence of identification.

33 Mr Christopher Bashour had been a long-time customer of the plaintiff and regarded the plaintiff highly. The plaintiff on a lot of occasions fixed his washing machine and was very helpful. Mr Bashour wanted the plaintiff to recover some money for the effects of the injuries he had received.

34 Mr Bashour went to Court on 23 November 2007 to support the plaintiff. He was sitting inside the Court.

35 Mr Bashour said he had not met Joseph Tadros or George Tadros prior to 23 November 2007. He knew the sister of George Tadros prior to 23 November 2007. Mr Bashour said the plaintiff said to him that a particular person was the brother of Mr George Tadros. Mr Bashour claimed that the plaintiff introduced the Tadros brother (or perhaps he meant the Tadros family) – the evidence is not clear.

36 Mr Bashour said that he had not met Mr Joseph Tadros before 23 November 2007. Mr Bashour insisted that Mr Joseph Tadros was present in Court. After 23 November 2007 Mr Bashour did not see Mr Tadros before or about the time he swore his affidavit of 25 July 2009.

37 The plaintiff, Tania and Mr Bashour experienced difficulty in giving evidence. The plaintiff had the benefit of an interpreter in the Arabic language but it was apparent that there was difficulty in getting the plaintiff to answer the questions put to him. He wanted to argue his case rather than deal with the questions put to him. He had trouble, even with the aid of an interpreter, in dealing with the questions he was asked. The plaintiff knew Joseph Tadros and he had known him for many years. He was adamant that Joseph Tadros was present at the District Court hearing on 23 November 2007.

38 Tania seemed overwhelmed by having to give evidence. She appeared to have difficulty in understanding some of the questions she was asked. She did her best to give truthful evidence as she understood the events of 23 November 2007 but I did not think that her evidence as to Joseph Tadros being at Court on 23 November 2007 could be accepted. She did not know whether he was at the Court on that day.

39 Mr Bashour also experienced difficulty in giving evidence. He had a limited understanding of English. One of the difficulties with Mr Bashour’s evidence was that he wanted to state certain matters which he believed were important. He had difficulty in answering the questions he was asked and tended to state what he wanted to say. While Mr Bashour believed that Mr Joseph Tadros was present at the District Court on 23 November, I approached his evidence with caution.

40 Mr Joseph Tadros said that he was not present at court on 23 November 2007 and that he was at his shop in Guildford running a normal day-to-day business.

41 Joseph Tadros said that he and his brother-in-law Mark, the husband of Dianne, had a falling out in the late 1990s and he, Joseph, had not been to Mark’s house since 1999 or maybe 2000. He believed that the incident in which George Tadros was alleged to have assaulted the plaintiff happened at Mark’s house. Joseph said he was never present at any incident where George assaulted the plaintiff.

42 Joseph said that, prior to the commencement of these proceedings, he was not aware of the allegations being made against his brother, George. He thought that he had last seen George around mid 2008 (April or May 2008), but he could not be definite about the time. At that stage George said he was in financial difficulties, that he needed to pay off some debts, that he had had enough of Sydney and wanted to get out. Joseph said that George did not tell him (Joseph) where he (George) was going. Joseph said he had not spoken to George since, that he had tried to contact George but the telephone number he had has been disconnected and had been disconnected for a period and that was the only contact that he had.

43 Mail is received at the property at Granville addressed to George, but is just left there. Joseph said he did not open or touch the mail addressed to George. There was one exception where an express post envelope was returned to the sender (Exhibit A).

44 Joseph said he started to reside at the property roughly around early 2008. His mother lives there.

45 In November 2007 George did not have a source of income and Joseph believed that continued to be the position until George left about mid 2008. George never told Joseph of any assets he owned apart from the property at Granville.

46 Joseph said that despite his contact with his mother, two of his sisters and older brother, he was not told that George had assaulted the plaintiff. Joseph also said that he was not told that there were some court proceedings over the assault. Joseph said that he spoke to George in October 2007. They exchanged greetings and discussed football. Joseph described George as very lonely and very secretive. Joseph said he was not told about other members of the Tadros family attending court to witness the court case against George or the result.

47 The plaintiff relied upon an electoral roll search revealing that the current address recorded for one man called George Tadros was at this property in Granville. The evidence establishes that George Tadros has not lived or been there since about mid 2008 and that Joseph has not seen George since or had contact with him since about that time.

48 An historical search (annexure A to the affidavit of Joseph Tadros) reveals that the first title to the property was Old System and that conversion action was recorded about 24 December 1997. A further historical search (as at 15 January 2008 – Annexure U to the affidavit of Joseph Tadros) reveals this endorsement:

“Qualified Title. Caution Pursuant to Section 28J(1) and 28J(1A) of the Real Property Act 1900 Entered 24.12.1997. Bk .... No ...”

49 Sections 28J(1) and 28J(1A) provide:

“28J Cautions

(1) When creating a qualified folio of the Register for any land, the Registrar-General shall record in that folio a caution warning persons dealing with the registered proprietor that the land comprised therein is held subject to any subsisting interest, whether recorded therein or not.

(1A) Where, in the opinion of the Registrar-General, any of the documents which evidenced the title to land comprised in a qualified folio of the Register conveyed or purported to convey the land otherwise than for valuable consideration, the Registrar-General may, when creating the folio, include in the caution recorded therein a notation to that effect.”

50 Bk ... No ... comprises an Acknowledgment by George Tadros that he is the Devisee under the will of Joseph Tadros and that he (George Tadros) “is entitled for the estate for which the same is devised to him by the said will” to the property – a metes and bounds description is given. I have earlier referred to some parts of the will. As at 25 June 2009 the caution remained on the title.

51 Joseph had notice of the rights of his mother and they could be enforced against him. Joseph accepted that his mother had the right to reside in the property for the periods stated in the will.

52 Each of the three sisters and the older brother of Joseph Tadros signed an acknowledgement in these terms:

“I ... hereby acknowledge that George Tadros has fulfilled his requirement to pay me the amount of $10,000 owed to me as a beneficiary under the will of my late father, Joseph Tadros, by deducting this amount from the purchase price paid by my brother Joseph Tadros for the purchase of [the property] and that my brother Joseph Tadros is now responsible for this beneficial entitlement.”

53 Joseph gave this explanation:

“... my siblings ... each acknowledged that their beneficial interest under my late father’s estate has been transferred from my brother George to myself ...”

54 I doubt if George paid the legacies. Joseph seemed to regard himself as bound to pay them.

55 As to attendance at the Court hearing on 23 November 2007, I am unable to make a finding whether Joseph attended at that hearing. That was principally a contest between the evidence of the plaintiff and the evidence of Joseph. I did not regard the evidence of Tania and Mr Bashour as having weight. Many members of the Tadros family were probably at the District Court on 23 November 2007. Whether Joseph was amongst them I am unable to say on the evidence. There was nothing in the way in which Joseph gave evidence that would lead me to reject his evidence. I am also unable to make a finding whether Joseph knew of the District Court proceedings involving the plaintiff and George. In the normal course of events I would have expected two of the sisters and the older brother to have mentioned the proceedings to Joseph, but he insists that he was not told of them and I am not persuaded that I should reject his evidence. George probably did not tell Joseph. However, it is probable that the District Court proceedings played a part in George wanting to leave Sydney and George wanting money. George also probably had other debts. George did not welcome having any responsibilities for his mother or having to meet the outgoings for the property.

56 Joseph arranged the borrowing of the money after George asked him to be a guarantor of a loan. Joseph wanted to borrow as much as he could so that he could utilise some of the loan funds. It was arranged that the moneys borrowed would be paid to Joseph and that was done. George was not prepared to wait until Joseph decided to release some funds. He engaged Laing and Simmons to sell the property. Joseph subsequently arranged to buy this property.

57 Both George and Joseph, in fixing the purchase price in November 2007 and about February 2008 in the transfers, appeared to settle on the approximate price the property would realise on the open market. They did not appear to take into account the conditions in the will and the effect of these on the value of the devise.

58 I would infer that George in the transfer of November 2007 was intending to defeat and delay creditors. I would further infer that this intention underlay his transfer of February 2008. George wanted a certain amount of money and he was prepared to transfer his interest in the property to obtain it. Joseph was prepared to buy George out. I infer that Joseph probably realised that this would adversely affect George’s creditors. He was aware that George had creditors. Joseph was prepared to shoulder the burdens of his mother’s right of personal residence, the payment of outgoings and the payment of the legacies to his older brother and three sisters.

59 While I was not satisfied that Joseph was aware of the District Court proceedings and also their result, as mentioned, Joseph was aware that George had creditors, was in desperate need of a substantial sum of money, wanted to leave Sydney and no longer wished to accept the burdens of his devise. Joseph also realised that he was obtaining a benefit and was borrowing a substantial sum of money on the security of the property being transferred into his name.

60 I have applied the decision in Chen v Marcolongo; Chen v Lym International Pty Ltd [2009] NSWCA 326 and noted that there must be a fraudulent mental state under s 37A of the Conveyancing Act. The disponor’s intent is critical. See Cannane v J Cannane Pty Ltd; Cannane v Official Trustee in Bankruptcy [1998] HCA 26; 192 CLR 557 at 567.

61 I would infer that George had the requisite intent, that Joseph probably realised this and facilitated George’s actions.

62 The plaintiff contended that both the MDN and Citibank mortgages and advances constituted an alienation of property within s 37A of the Conveyancing Act 1919. The mortgages were alienations of property.

63 I am not satisfied that the first and second defendants were in regular contact between November 2007 and April 2008. As mentioned, there was some contact between them during the period between November 2007 and February 2008 and evidence of contact about mid 2008 (April – May approximately).

64 As to the allegation that Joseph gave no consideration to George in respect of the MDN and Citibank Advances, I do not think that is correct. It is probable that Joseph did not pay George $3,000.00 for the transfer of the 1% interest in the property. However, Joseph became liable in each instance to pay interest, repay the principal sum and to observe the covenants of the mortgages. Further, out of the Citibank Advance, Joseph caused $38,949.57 to be paid to George. Joseph also took with notice his mother’s right of residence. She was living in the property.

65 I do not agree with the allegation in the Points of Claim that “At all material times [Joseph] had notice of George’s intent to defraud the plaintiff”. I am not satisfied that Joseph was present at the District Court on 23 November 2007, nor that he was aware of the District Court proceedings against George or their result. As mentioned, I infer that Joseph probably realised that George had a number of creditors, needed a substantial sum of money and that the mortgages granted would adversely effect the creditors of George (but not including any knowledge of the plaintiff’s claim). That does not mean that the plaintiff is entitled to the amounts of the advances. In paragraphs 2, 3 and 4 of the Points of Claim the plaintiff acknowledges the limited estate of George.

66 The plaintiff did not seek to attack the mortgages to MDN Mortgages Pty Ltd and Citigroup Pty Limited in that they were not joined as parties. There is no valuation of the interest of George Tadros under the will of his father, i.e., of the devise of the property subject to the personal right of residence of his mother, the obligation to pay outgoings and the obligation to pay pecuniary legacies. That appears to have been the only asset George had. Mr George Tadros was not entitled to receive the full value of the property. George Tadros could live at the property along with his mother, but he left.

67 One of the problems any valuer will face is whether the standard life expectancy tables as to the life expectancy of Nazha Tadros should be applied. This may depend upon her state of health. A further matter may be whether Nazha Tadros is likely to have to enter a nursing home, and, if so, when.

68 Joseph Tadros submitted that the plaintiff specified, as was his duty, the relief which he sought. I was not prepared to grant that relief.

69 In Silvera v Savic [1999] NSWSC 83; (1999) 46 NSWLR 124 at [72] Hodgson CJ in Eq stated:

“What s 37A says is that the ‘alienation’ is ‘voidable’. In my opinion, when an application is made under s 37A to the Supreme Court, that Court can achieve the effect of avoiding the alienation by such measures as seem appropriate in the particular case.”

70 Counsel for Joseph Tadros submitted that, because the plaintiff had failed to specify any lesser relief to which the Court held the plaintiff was entitled and lead evidence justifying it, the plaintiff should not be given an opportunity where there were relatively small sums of money involved to improve his case and substantiate the relief to which he was entitled. That point has force. This was a case where there were significant factual disputes as to the knowledge of Joseph Tadros which cannot be satisfactorily resolved except to the extent I have indicated.

71 The Court should not ignore the conditions imposed upon the devise to George. Once the value of the devise to George is ascertained, I am minded to consider, as a means of avoiding the alienations, ordering that Joseph pay a sum equal to that value to the plaintiff. Joseph holds on his evidence about $160,000 to $170,000 in his Citibank loan account.

72 I am considering making the following declarations and orders:

1. A declaration that the transfer of title (First Transfer) dated 15 November 2007 and registered [...] by the First Defendant to the First and Second Defendants of the property at Granville, being lot ..., DP ..., was effected, by the First Defendant with the knowledge of the Second Defendant as to creditors generally (but not the plaintiff), with intent to defraud creditors.

2. A declaration that the transfer (Second Transfer) of title dated 14 February 2008 and registered [...] by the First and Second Defendants to the Second Defendant of the said property was effected by the First Defendant with the knowledge of the Second Defendant as to creditors generally (but not the plaintiff), with intent to defraud creditors.

3. A declaration that the First and Second Transfers are voidable pursuant to s 37A of the Conveyancing Act 1919.

4. Order that:

a) the interest of George Tadros in the devise under the will of the property at Granville, subject to these conditions

(i) the personal right of residence of Nazha Tadros for as long as she lives or for as long as she wishes to reside there

(ii) payment of all the outgoings in respect of the said matrimonial home

(iii) payment of pecuniary legacies, totalling $50,000

be valued; and

b) that a single expert be appointed to carry out such valuation and that such expert be selected by agreement between the parties, or, failing agreement, by the nominee of the President of the Real Estate Institute NSW (see UCPR 31.7 and following).

73 There should, if possible, be a comprehensive medical report as to the health of Nazha Tadros, her anticipated life expectancy, including whether there is any reason to depart from the life expectancy tables published by the Australian Bureau of Statistics for females for 2004 – 2006, and whether she is likely to have to enter assisted accommodation or a nursing home, and if so, when. It would be desirable if the physician requested to prepare the report was agreed. The costs of that report should be borne by Joseph Tadros in the first instance. This medical report should be made available to the valuer. Mrs Nazha Tadros is not a party to these proceedings and there appears to be no power to require her to undergo a medical examination nor, it appears, can such an examination be indirectly required. See Ritchie UCPR (NSW) 23.1.5 – p 7147 and cases there cited. The absence of a medical report may be a matter for comment. The plaintiff seeks to rely upon the figures stated in the Transfers and the second defendant seeks to rely upon the reduced value of the devise. Has the groundwork been laid which would justify the application of the Tables? In the absence of any satisfactory evidence of valuation, the plaintiff may seek to renew his request to proceed upon the basis of the figures stated in the transfers and the other figures in the evidence. The figures stated in the transfers do not seem to take into account the conditions attached to the devise.

74 I am conscious of the expense involved in obtaining a comprehensive medical report from a physician and a valuation and I am prepared to consider other solutions, including one agreed by the parties. What is being considered would bring the matter back before me and add to the expense. That presently appears unavoidable.

75 On 19 February 2010, just before the hearing commenced, the solicitors for the plaintiff wrote to Mrs Nazha Tadros at the property, advising her that Mr El Zakhem was seeking orders in these proceedings that may affect her life interest in the property. The letter stated that she should seek urgent legal advice as to her situation and at the very least attend the Court on 22 February 2010. I did not regard this letter as timely and adequate notification of these proceedings. Mrs Nazha Tadros apparently handed this letter to Joseph who brought it to the attention of the Court. I was not proposing to make any order which would affect her rights under her late husband’s will.

76 I have tended to take the view that the claim against George Tadros under s 37A should not exceed the value of his interest in the devise and that the claim against Joseph Tadros likewise should not exceed the value of George’s interest in the devise. Questions of interest may arise as from 15 November 2007 and 14 February 2008, but they have not been argued.

77 I propose to allow the parties to make any necessary inquiries and arrangements in the light of these reasons. When the matter is next listed, I would hope to be told that arrangements have been made to obtain a comprehensive medical report and that the parties have agreed on a named valuer. The valuer will probably have to inspect the property.

78 1. I direct the plaintiff to serve on the defendant within fourteen days (with a copy to my Associate) his draft proposed Short Minutes of Order to give effect to this judgment.

2. Within ten days thereafter the defendant is to advise of any desired amendments or to serve a copy of his proposed Short Minutes of Order.

3. I appoint Friday 9 April 2010 at 9.30 am to settle the short minutes and resolve any outstanding questions with leave to the parties to arrange an earlier or later date with my Associate.

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LAST UPDATED:
22 December 2010