As a bankruptcy trustee and official liquidator I spend quite of bit of my work day trying to void a number of transactions and transfers of property. These transfers are usually ones where the bankrupt or company has moved, sold or otherwise disposed of assets under conditions that leave their creditors without those assets or adequate consideration for them. These actions are really part of an insolvency practitioner’s stock-in-trade.
Now, after 21 years in the industry, I have recently spent 3 days in court as a defendant trying to show that a transfer of property was not void. It was an interesting learning experience. The obvious factor is that the property was transferred to the bankrupt, not transferred by the bankrupt to someone else.
When we are preparing claims to void transactions under the relevant insolvency provisions, we always instigate the action as plaintiff, and we naturally look at the defences that may be available to the other side to see how they would or could defend the application. I have gained a lot of hypothetical experience as a defendant to insolvency actions over the years in preparing my applications. I believe that this is called ‘opposition prep’ in some circles.
Not much of this was useful to me in this matter as the application to void the transfer was not made under the Bankruptcy Act. It involved a transfer of real property by a father to his children (one of whom later became bankrupt) and an application by the new wife to overturn the transfer after his death (many years later).
It was also a different experience not being the ‘aggressor’ in the application and having to react to the application instead of being in the driving seat. You get an appreciation of the defence lawyer’s position that you do not get being the applicant.
The case was full of arguments about the lack of probate, the doctrine of advancement, capacity of the father, multiple wills, unconscionable conduct, a ‘poor war widow’, etc., etc., etc. It had it all.
Anyway, the case has been heard, the judgement has been reserved, and now an application for probate is in the wings. Once the matter has been decided and resolved I will write an article about the detail – or maybe a mini-series on SBS.
