Agusta Pty Ltd v Provident Capital Ltd

[2012] NSWCA 26

NSW Court of Appeal

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Interrogate

Catchwords

1. Real Property
2. › Conveyancing
3. › Voluntary alienation to defraud creditors
4. › Transfer of trust property from outgoing to incoming trustee
5. › Whether intent to defraud creditors by making execution against land impossible
6. › Whether transfer hindered or delayed creditor
7. › Conveyancing Act 1919 (NSW), s 37A
1. Equity
2. › Trusts and trustees
3. › Trustee's right of indemnity
4. › Preferred beneficial interest in trust assets
5. › Whether right subsists after transfer to new trustee
6. › Subrogation of trust creditors to trustee's right of indemnity
7. › Trustee Act 1925 (NSW), s 59(4)
1. Practice and Procedure
2. › Judgments and orders
3. › Enforcement of judgments
4. › Writ of execution
5. › Whether writ of execution may be enforced against trust property
6. › Trustee's preferred beneficial interest as impediment to execution at law
7. › Real Property Act 1900 (NSW), ss 105, 105A, 105B
1. Real Property
2. › Torrens system
3. › Recording of writs of execution
4. › Protected period
5. › Whether injunction or caveat available to protect unregistered equitable interest
6. › Real Property Act 1900 (NSW), ss 42, 74F, 74H, 105, 105A, 105B

Quick Take

A transfer of trust property from an outgoing trustee to an incoming trustee does not constitute a fraudulent alienation under s 37A of the Conveyancing Act 1919 (NSW) where the judgment creditor's remedy (equitable execution through subrogation to the trustee's right of indemnity) is the same before and after the transfer. Trust creditors' subrogated rights to the trustee's preferred beneficial interest survive the transfer and subsist in the trust assets in the new trustee's hands. The proper relief under s 37A is restoration of the alienor's estate, not the creation of a charge or security interest in favour of a particular creditor.