In the matter of Lawrence Waterhouse Pty Ltd (in liq) - Shaw v Minsden Pty Ltd

[2011] NSWSC 964

Supreme Court of NSW

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Catchwords

1. CORPORATIONS — whether transfer of land and/or creation of charge over land is/are insolvent transaction(s) pursuant to s 588FC of the Corporations Act 2001 (Cth) or unreasonable director-related transaction(s) pursuant to s 588FDA (and, in either case, voidable pursuant to s 588FE) — in the alternative, whether transfer and/or creation of charge is/are alienation(s) of land with intent to defraud a creditor pursuant to s 37A of the Conveyancing Act 1919 (NSW) — CONTRACTS — whether rights and equitable interest arising under transfer have been abandoned — TRUSTS — whether transferee (Minsden) holds land and/or charge on constructive trust for transferor (Lawrence Waterhouse) — whether Lawrence Waterhouse held land as trustee for its director (Wayne Lawrence) and, if so, whether Lawrence Waterhouse is entitled to indemnification — whether, if transfer void or set aside, land is held on constructive trust for Wayne Lawrence and subject to an equitable charge in his favour — HELD — abandonment not established — Lawrence Waterhouse held land as trustee for Wayne Lawrence at time of transfer — Lawrence Waterhouse entitled to indemnification and to trace land into hands of Minsden for that purpose — charge set aside as unreasonable director-related transaction and alienation of property with intent to defraud creditor — CORPORATIONS — whether Lawrence Waterhouse has kept proper books and records for purposes of s 286 of the Corporations Act — if not, whether presumption of insolvency has been rebutted — whether Wayne Lawrence has breached any civil penalty provisions and exculpatory relief should be granted — HELD — failure to keep proper books and records — presumption of insolvency rebutted up to date of withdrawal of support by Wayne Lawrence — breach of statutory duty established — exculpatory relief not granted so as to absolve director from obligation to account for any loss sustained through breach of that duty