Section 37A of the Conveyancing Act 1919 (NSW) requires proof of an actual and real intent to defraud creditors, which in the ordinary case (particularly for conveyances for consideration) involves an element of dishonesty. The mere fact that a creditor would miss out on receiving payment is insufficient; the court must focus on the actual intent of the disponor and ask whether there was a sufficient motivating factor that creditors would be defrauded. A fiduciary who uses a power of attorney to sell property to himself commits a clear breach of fiduciary duty, but even a dishonest fiduciary may be entitled to an allowance for skill, expenditure and contribution to the value of the property in the accounting. The question of whether a person with a pending unliquidated tort claim has standing as a 'person thereby prejudiced' under s 37A was left unresolved, with Allsop P and Young JA expressing different views.
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