Federal Court of Australia

Weston v Sanna (No 4) [2021] FCA 287

ORDERS

THE COURT ORDERS THAT:

1.    Paragraph 4 of the first respondent’s interlocutory application filed on 8 February 2021 (Interlocutory Application) is dismissed.

2.    The first respondent pay the applicant’s and the tenth respondent’s costs of paragraph 4 of the Interlocutory Application.

3.    If the eleventh respondent wishes to make application for payment of its costs of paragraph 4 of the Interlocutory Application:

(a)    the eleventh respondent should file and serve its submissions in support of such an application, not exceeding two pages in length, within seven days of the date of publication of these reasons;

(b)    the first respondent should file and serve any submissions in reply, not exceeding two pages in length, within 14 days of the date of publication of these reasons; and

(c)    the determination of any claim by the eleventh respondent for its costs will be dealt with on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC J:

1    By interlocutory application filed on 8 February 2021 (Interlocutory Application) Corrado Sanna, the first respondent to this proceeding, seeks orders as to his entitlement to seek any further or additional relief in this proceeding and, if so, a determination of the nature of that relief including quantification of the amount which he is entitled to be paid by Paul Gerard Weston in his capacity as trustee of the bankrupt estate of Lepa Sanna (Trustee) pursuant to s 121(5) of the Bankruptcy Act 1966 (Cth) (Act) and an order, in the nature of an injunction, deferring the sale of a property situated at 33-35 Circulo Drive, Copacabana (Copacabana Property) until determination of the Interlocutory Application.

2    As the Trustee is in the course of arranging the sale of the Copacabana Property, it became necessary to deal with Mr Sanna’s application for deferral of the sale of the Copacabana Property until determination of the balance of the relief sought in the Interlocutory Application with some urgency and the proceeding was listed for hearing of that prayer for relief.

3    This proceeding has a long history. At the time of its commencement and until 16 April 2020 Mr Sanna was the only respondent to the proceeding. However, for reasons which are explained below, there are now 12 respondents to the proceeding, most of whom do not take an active role in it. Apart from the Trustee and Mr Sanna, only the seventh respondent, Lepa Sanna, who is Mr Sanna’s former wife and now a discharged bankrupt, the tenth respondent, Defined Properties Investments Pty Ltd (Defined), and the eleventh respondent, Wyse & Young International Pty Ltd (in liq) (Wyse & Young), appeared at the hearing of the Interlocutory Application.

background

4    Prior to 8 May 2013 Ms Sanna was the registered proprietor of the Copacabana Property and the half owner of 83B Lindeman Crescent, Green Valley (Green Valley Property).

5    By transfer registered no AH755747 dated 8 May 2013 Ms Sanna transferred the Copacabana Property to Mr Sanna (Copacabana Transfer).

6    By unregistered transfer Ms Sanna transferred her half share interest in the Green Valley Property to Mr Sanna (Green Valley Transfer).

7    On 10 December 2013 Ms Sanna became a bankrupt and the Trustee was appointed as the trustee of her bankrupt estate.

History of the proceeding

8    The Trustee commenced this proceeding seeking declarations, pursuant to s 120 or, in the alternative, s 121 of the Act, that the Copacabana Transfer and the Green Valley Transfer are void as against him and relief consequent upon the making of such declarations.

9    The proceeding was heard together with a related proceeding, NSD619/2016, for three days commencing on 12 March 2018.

10    On 24 January 2019 I delivered judgment in the proceedings and made orders requiring the parties to provide draft short minutes giving effect to the reasons of the Court or, if they were unable to agree on a form of orders, to provide their competing draft short minutes. The proceedings were to be listed for case management hearing on 21 February 2019: see Weston (Trustee) v Sanna [2019] FCA 32 (Sanna (No 1)).

11    At [114]-[133] of Sanna (No 1) I considered whether the Copacabana Transfer was void against the Trustee and concluded (at [132]) that the Trustee had made out his claim pursuant to s 121(1) of the Act and was entitled to a declaration that the Copacabana Transfer is void against him. Relevantly at [123]-[124] I said:

123    Mr Sanna has also failed to bring himself within the exemption set out at s 121(4) of the Act. To the extent he wished to do so, the onus fell on Mr Sanna, as the transferee of the property, to establish that he could have the benefit of that subsection: see Re Jury; Ashton v Prentice (1999) 92 FCR 68 at [67].

124    Mr Sanna’s defence does not seek to establish that he acted in good faith so as to bring him within s 121(4) of the Act but relies on establishing that the Copacabana Property was acquired from Arcadia and not Mrs Sanna and thus was not a transaction that could come within s 121 (or s 120) of the Act. Even if that were not so, I accept the Trustee’s submission that Mr Sanna has not led any evidence to establish that the consideration given for the Copacabana Transfer was at least as valuable as the market value of the Copacabana Property or that he did not know, and could not reasonably have inferred, that Mrs Sanna’s main purpose in making the Copacabana Transfer was to prevent the Copacabana Property from becoming divisible among her creditors or to delay or hinder that purpose. An additional matter preventing Mr Sanna from taking advantage of s 121(4) was his evidence of Mrs Sanna’s financial position which was clearly contrary to subs (4)(c).

12    Commencing at [134] of Sanna (No 1) I considered whether, as Mr Sanna had pleaded in his defence, in circumstances where the Copacabana Transfer was to be set aside he was entitled to a refund of the consideration given for the transaction. At [136]-[138] I made the following findings:

136    Here, having raised an entitlement to payment under s 121(5) of the Act, Mr Sanna bears the evidentiary onus of establishing that consideration was given and its value.

137    The Trustee submitted, and I accept, that the only available objective evidence of the consideration for the Copacabana Property given by Mr Sanna was the loan of $818,000 from Westpac which was paid to DPI to discharge the Copacabana DPI Mortgage. In his written submissions, Mr Sanna also notes that he paid $818,000 to DPI. In cross-examination Mr Sanna said that, at the time of the transfer of the Copacabana Property, he paid an additional sum of $166,000 to Mr Dimitriou. But beyond that assertion, there was no evidence led by Mr Sanna to establish payment of that additional amount as consideration for the Copacabana Transfer.

138    Accordingly, in my opinion, for the purpose of s 121(5) of the Act Mr Sanna has established that he gave consideration of $818,000 for the Copacabana Transfer. The Trustee must pay that amount to Mr Sanna.

13    I also made a finding that the Green Valley Transfer is void against the Trustee pursuant to s 121(1) of the Act and that a declaration should be made to that effect: see Sanna (No 1) at [151]. As the current application only concerns the Copacabana Property, it is not necessary to set out the reasoning that led to that conclusion or any relevant findings.

14    As recorded at [6] of Sanna (No 1), during the course of the hearing it became apparent that if the Trustee was successful in setting aside the Copacabana Transfer and the Green Valley Transfer, the parties were not in a position to deal with the consequences that flowed from findings to that effect. As a result the parties agreed that the matter should proceed in two stages. The first concerned the determination of whether the Copacabana Transfer and the Green Valley Transfer were void against the Trustee pursuant to s 120 or s 121 of the Act and was the subject of Sanna (No 1). The second concerns the consequences of such findings. In particular, at the time, the reasons for the need to bifurcate the determination of the matter in that way were twofold: first, late in the hearing, and after Mr Sanna had been cross-examined, counsel for Mr Sanna attempted to tender further evidence to establish that Mr Sanna had discharged certain liabilities which he said were secured over the Green Valley Property: Sanna (No 1) at [6]; and secondly, the subdivision of the Copacabana Property into two lots with one lot being sold by Mr Sanna after commencement of this proceeding raised as an issue whether the Trustee should have the proceeds of sale of the sold lot paid to him, with or without any adjustment including the amount of such adjustment: see Sanna (No 1) at [145].

15    On 21 March 2019 the Court made declarations pursuant to s 121(1) of the Act that the Copacabana Transfer is void against the Trustee and that Ms Sanna’s transfer to Mr Sanna of her interest in the Green Valley Property is void against the Trustee. The Court also made orders by consent including that within 21 days Mr Sanna execute all instruments and do all acts and things necessary to cause title in the Copacabana Property to be conveyed to the Trustee and that Mr Sanna file and serve any evidence in support of any claim in relation to the Green Valley Property and the Copacabana Property together with points of claim by 18 April 2019.

16    Mr Sanna did not vacate the Copacabana Property nor did he file any evidence or points of claim in accordance with the orders made on 21 March 2019.

17    On 23 May 2019 the Court again made orders for Mr Sanna to file and serve any evidence in support of any claim in relation to the Green Valley Property and the Copacabana Property together with any points of claim by 29 May 2019.

18    On 30 May 2019 Mr Sanna filed a document titled “respondent’s points of claim” in which he sought orders pursuant to s 121 of the Act for the Trustee to pay him an amount equal to the consideration he had paid to Ms Sanna for acquiring her interest in the Copacabana Property and in the Green Valley Property. Mr Sanna set out the amounts which he said ought to be paid to him pursuant to s 121(5) of the Act in addition to those amounts which were the subject of findings in Sanna (No 1).

19    The matter was next before the Court on 6 June 2019 at which time, among others, orders were made for the preparation of the matter to proceed to hearing on the remaining issues. However, a hearing did not take place.

20    Thereafter the proceeding became complicated by two matters: first, a proceeding commenced in the Supreme Court of New South Wales by Wyse & Young, Defined and Wolgan Consulting Pty Ltd against, among others, Mr Sanna, was transferred to this Court. Judgment had been given in that proceeding. However, an issue arises as to the entitlement of Wyse & Young and Defined to any of the proceeds of sale of the Copacabana Property and the Green Valley Proprety and as to whether Defined might have priority over other creditors; and secondly, a number of parties had lodged caveats on the title of the Copacabana Property and the Green Valley Property. The Trustee took steps to investigate the nature of their claims including the amount said to be owing.

21    By interlocutory application filed on 6 March 2020 (Trustee’s Application) the Trustee sought orders including orders permitting him to sell the Copacabana Property and the Green Valley Property. Mr Sanna did not object to the orders sought by the Trustee in the Trustee’s Application save insofar as he sought payment of a license fee by Mr Sanna for his continued occupation of the Copacabana Property.

22    On 16 April 2020 orders were made joining all but one of the caveators of the Copacabana Property and the Green Valley Property as second to twelfth respondents to the proceeding. It is intended that any claim the caveators may have in relation to the proceeds of sale of the Copacabana Property (or the Green Valley Property) will be dealt with as an additional remaining issue in the second stage of the proceeding. The Trustee’s best estimate of the value of the claims made by the caveators is approximately $1.38 million.

23    On 15 June 2020, after a hearing of the Trustee’s Application, orders were made including orders that the Trustee has power to offer the Copacabana Property for sale and to sell that property by public auction and requiring each of the caveators to withdraw their caveats lodged on the title of the Copacabana Property or Green Valley Property, as applicable. In addition, the following orders were made in relation to Mr Sanna’s continued occupation of the Copacabana Property:

5.    Within seven days of the date of these Orders, the respondent (Mr Sanna) is to deliver to Mr Weston any deeds or documents of title in his possession or under his control relating to the Copacabana Property which may properly be required for the completion of any sale of it.

…

 8.    Mr Sanna may continue to reside in the Copacabana Property provided that he:

(a)    allows all reasonable access to the Copacabana Property to Mr Weston or as Mr Weston may direct for the purpose of giving effect to these Orders; and

(b)    within 14 days of receiving any council rates notice or utilities bill in relation to the Copacabana Property, pays to Mr Weston the amount of that notice or bill.

 9.    The payments referred to in paragraph 8(b) of these Orders are to be:

 (a)    made by way of electronic transfer to the following bank account:

Account Name: Lepa Sanna (Bankrupt Estate)

BSB: 182 222

Account No: 248164592;

(b)    dealt with as if they were proceeds of the sale of the Copacabana Property.

10.    Notwithstanding paragraph 8 of these Orders, Mr Sanna must provide Mr Weston with vacant possession of the Copacabana Property on or before the earlier of:

(a)    14 days prior to the completion date of any exchanged contract for the sale of the Copacabana Property; or

(b)    13 August 2020.

See Weston (Trustee) v Sanna [2020] FCA 830.

24    Mr Sanna did not vacate the Copacabana Property by 13 August 2020. Accordingly, the Trustee filed a request for enforcement in relation to the Copacabana Property and thereafter a writ of possession was issued. The writ was scheduled for execution by the Sheriff on 4 November 2020.

25    On 27 October 2020 Mr Sanna filed an interim application in which, among other things, he sought a stay of the execution of the writ of possession so as “[t]o enable ongoing negotiations for the purchase of [the Copacabana Property] from the Trustee by [him]”.

26    On 2 November 2020 the Court made orders dismissing Mr Sanna’s interim application and for Mr Sanna to pay the costs of those parties participating in the hearing of that application: see Weston (Trustee) v Sanna (No 2) [2020] FCA 1625.

Mr Sanna’s Evidence

27    Mr Sanna relies on an affidavit sworn by Andrea Lee, a solicitor in the employ of Mr Sanna’s current solicitors, and an affidavit sworn by him on 21 March 2021.

28    In his affidavit Mr Sanna gives the following evidence:

(1)    he ceased to reside at the Copacabana Property on 4 November 2020 when the Sheriff came to the property and handed him an eviction notice. Mr Sanna says he moved out on that day;

(2)    at the time he moved out of the property there were personal items, furniture in the bedroom and a snooker table that were left behind. Mr Sanna says that the property was tidy when he vacated it, he had cut the grass and cared for it and, although the pool needed a “quick clean”, it was otherwise satisfactory. Mr Sanna accepts that he left a forklift and some formwork outside the property as well as three fridges and some outdoor furniture;

(3)    Mr Sanna has moved to his son’s home where he presently lives and assists with the rental and household costs;

(4)    he acknowledges that when he left the Copacabana Property there were outstanding water and council rates which he ceased to pay because he does not believe that the Trustee has a claim against his home. As far as Mr Sanna is concerned, if the Trustee is asserting that the Copacabana Property is his then the Trustee could attend to those expenses. For the same reasons Mr Sanna stopped paying the instalments due on the mortgage secured over the Copacabana Property. Mr Sanna says that he was advised by his former solicitors to stop paying the mortgage if the Trustee was seeking to avoid the transaction as well the rates and the water rates and so he did;

(5)    Mr Sanna now understands that orders were made on 15 June 2020 but, because he was distracted with his work at the time, he says he was not fully aware of the orders requiring him to pay council and water rates;

(6)    in recent times Mr Sanna has observed that the Copacabana Property has fallen into a state of disrepair;

(7)    Mr Sanna notes that there is a mortgage from Westpac Banking Corporations (Westpac) secured against the Copacabana Property, Westpac has not taken any action against him under the mortgage and, depending on the outcome of this application, he intends to take up matters concerning the mortgage with Westpac and how it may be serviced. He will seek to refinance the Copacabana Property and to pay instalments due under the mortgage from his income. Mr Sanna is a licensed concreting contractor and carries on business under the name Sanna Construction Pty Limited;

(8)    Mr Sanna says that in the event that a sale of the Copacabana Property was to proceed at a later time, because he could not resolve issues with Westpac, then he would sell the property after attending to its repair; and

(9)    he has offered to attend to repairs of the Copacabana Property but the Trustee’s solicitors have rejected his offer.

29    Mr Sanna also relied on a bundle of documents produced by Westpac in answer to a subpoena. Those documents related to events surrounding the transfer of the Copacabana Property to Mr Sanna in 2013.

The Trustee’s evidence

30    The Trustee relied on an affidavit sworn by him on 5 March 2020 as well as affidavits sworn by Justin Gibb Bates, a partner of Dentons Australia, the solicitors for the Trustee, on 11 September 2020, 29 October 2020 and 23 March 2021. It is not necessary to set out that evidence in full save to note the following matters.

31    In relation to vacating the Copacabana Property Mr Bates gives the following evidence:

(1)    on 3 November 2020 he was contacted by the office of the Sheriff of New South Wales informing him that the eviction of the Copacabana Property scheduled for 4 November 2020 was rescheduled due to operational issues;

(2)    on 5 November 2020 Mr Hassan, as representative of Mr Sanna, telephoned Mr Bates and informed him that Mr Sanna had vacated the Copacabana Property. On the same day Mr Hassan sent an email to, among others, Mr Bates, which included:

1.    Mr Sanna vacate the above Copacabana Property around 12 noon on Wednesday 4 November 2020 pursuant to the Notice to Vacate issued by the Sherriff’s Office and the unsuccessful application for a Stay to Vacate heard before Justice Markovic on Monday 2 November 2020. I note that neither the Sheriff or a real estate agent representing the Trustee attended the property at the time Mr Sanna left the property.

…

6.    Mr Sanna attended the Copacabana Property today to retrieve some more of his personal furniture and other effects and noted that the premises was still unlocked, strewn items of furniture, a kitchen window open and a mattress thrown into the swimming pool- Indicating some evidence of vandalism.

(3)    based on information provided to Mr Bates by a representative of the Trustee, the Trustee’s agent changed the locks of the Copacabana Property on 6 November 2020 which is the date on which the Trustee obtained possession of that property.

32    A series of photographs of the Copacabana Property taken by the Trustee’s agent on 6 November 2020 were in evidence. They showed a mattress floating in the swimming pool and that building equipment, debris and other household effects were present in or around the Copacabana Property.

33    Given that the Trustee only obtained possession of the Copacabana Property on 6 November 2020, no inference can be drawn that the state of the Copacabana Property, depicted in the photographs referred to in the preceding paragraph, is as a result of any neglect on the part of the Trustee. Rather, the irresistible inference is that Mr Sanna left the Copacabana Property in that state at the time he vacated.

34    The Trustee’s agent has obtained a quote for the removal of all chemicals from and cleaning of the Copacabana Property which amounts to $10,000.

35    The Trustee has also obtained the current balance owing for rates and water on the Copacabana Property which are as follows:

(1)    council rates for the period 1 July 2020 to 30 June 2021 - $19,635.01; and

(2)    water rates for the period 1 January 2021 to 31 March 2021 - $13,716.65.

the interlocutory application

36    In the Interlocutory Application Mr Sanna seeks the following orders (as written):

1.    An Order that in the light of paragraph 138 of the reasons disclosed in the Court’s judgement of 24 Jan 2019, (and giving regard to the mortgage secured over the property), that the Court determine the question of whether Corrado Sanna is entitled to any further or additional relief in the second stage of the matter (refer paragraph 155 of the reasons for judgement of 24 Jan 2019);

2.    Should the Court determined that Mr Sanna is has no entitlement to seek any further or additional relief in the proceedings, an Order that he be excused from having to make any further appearance or from having any further involvement in the proceedings, (save as to any extant issues as to costs);

3.    An Order that in the event that Mr Sanna is entitled to seek any further relief in the matter, that the Court determine the nature of that relief, and whether an amount equal to the value of any consideration that the transferee gave for the transfer that is void against the trustee [Section 120(4) of the Bankruptcy Act] is:

(a)    the percentage as $818,000 bares to the overall value of the Copacabana property, at the time of the transfer;

(b)    the sum of $818,000, and whether this (as the judgement of 24 January 2019 states) is to be paid to Mr Sanna, or ought be paid directly to the Mortgagee concerning the property;

(c)    the amount that the sum of any consideration paid at the time of transfer equates as to the overall percentage of the value of the property (today);

(d)    some other amount.

4.    An Order that the sale of the Copacabana property be deferred until the determination of this application;

Mr Sanna’s submissions

37    Mr Sanna submits that, based on the affidavits upon which he relies and documents produced by Westpac, it is clear that the valuation of the Copacabana Property at the time at which he acquired his interest in the property was $810,000.

38    Mr Sanna observes that in Sanna (No 1) the Court found that the consideration paid by him for the Copacabana Property was $818,000, an amount which, given the additional fact referred to in the preceding paragraph, exceeds the value of that property at the time that he received it as transferee by approximately 1%. Mr Sanna submits that it follows that, in the event that the Trustee was to sell the Copacabana Property, then for the purposes of getting full value in terms of what he paid for it the Trustee would be required to reimburse him not only the sale price that he paid but an additional 1%.

39    Mr Sanna submits that the Court is aware that the Copacabana Property was acquired by him in 2013 and that it was his home and that he was living in the property until 4 November 2020, from which point in time it has degenerated “into a complete and utter state of disrepair”.

40    Mr Sanna submits that s 121 of the Act, the purpose of which is to avoid situations where assets that would have been available to creditors are taken out of an estate for the purposes of avoiding creditors’ claims, is a provision designed to deal with “undervalued” transactions. He says that relevantly, and for the purposes of the Act, there are specific provisions setting out what consideration is not, such as natural love and affection, but for present purposes the issue concerns the meaning of “value”. Mr Sanna contends that the amount that the Trustee is required to reimburse the transferee is not the monetary amount paid but the value of the property transferred. He contends therefore that what must be considered is what the term “value” means in its proper and true sense. Mr Sanna submits that in this case, based on the evidence, it is clear that he paid the full value of the Copacabana Property at the time of tis transfer.

41    Mr Sanna submits that the Act requires the Trustee to pay to him now the value of the consideration that he provided at the time he acquired the interest in the Copacabana Property which, he says, is its current full value. He says that the Trustee is asserting, by seeking to maintain this action in light of the facts now known concerning the value of the Copacabana Property at the time of transfer, that the Court should disregard the impact of inflation in a specific market on the time value of money. He says that inflation has decreased the worth of the monetary sum paid in an absolute dollar sense but it has not decreased the value of what was paid over time, where the asset remains identifiable i.e. the Copacabana Property. Mr Sanna submits that for this reason alone the sale of the Copacabana Property ought to be stayed and perpetually so, either now or at a later stage.

42    Mr Sanna says that he has shown reasons why the Court would revisit the prior orders for sale and why it would now stay those orders. He says that is for the following reasons:

(1)    the Copacabana Property is in no condition for sale and reasonable offers made by him to bring it back to that condition have been rejected by the Trustee;

(2)    the Trustee has not put forward a plan about his intention for the Copacabana Property and precisely when he might send someone in to fix it and at what cost;

(3)    whatever the amount the Trustee realises from the sale, on the face of it, he will be required to pay Mr Sanna 101% of that amount to compensate for the value of what he paid at the time of transfer;

(4)    if the Copacabana Property is not repaired now for sale it will be sold for a value that is less than its value in an absolute sense in 2013 when it presented in far better condition; and

(5)    to the above extent, the orders for sale must be stayed and it is irrelevant what may be the views of other persons bringing claims against the Copacabana Property.

43    Mr Sanna was unable to point to any authority to support his construction of s 121(5) of the Act. Those authorities on which he did rely did not squarely address the submissions he now makes about the meaning of “value” in the context of s 121(5) of the Act. For example, Mr Sanna relies on the decision in Westpac Banking Corporation v The Bell Group Limited (in liq) (No 3) (2012) 270 FLR 1 at [597]-[598] as providing guidance on what amounts to “valuable consideration”. He submits based on that decision that a review of all relevant circumstances in this matter shows the presence of real and proper worth or value, i.e. the full value, in the claim for consideration that was paid to the outgoing mortgagee at the time that he acquired the interest.

Support of Mr Sanna’s application by other parties

44    Ms Sanna supports the application by Mr Sanna for a deferral or stay of the sale of the Copacabana Property. She relies on an affidavit sworn by her on 21 March 2021. In that affidavit Ms Sanna sets out her recollection of some of the matters which led to the transfer of the Copacabana Property to Mr Sanna in 2013. Those matters are not relevant to the issue now raised by Mr Sanna. Ms Sanna also refers to proceedings she has commenced in the Family Court of Australia following her discharge from bankruptcy in which she is seeking to set aside a financial agreement between herself and Mr Sanna entered into in 2011. Once again, that is not a matter that is relevant to the issues which now need to be resolved by the Court.

45    Ms Sanna says that she opposes the sale of the Copacabana Property at this time and contends that, in her view, the Trustee has no interest in the property and when Mr Sanna received it he paid the whole of the value for it.

46    The Court also received an email from Robert Byrd, a solicitor who says he acts for Barrie Northcote Horne and E & B Pastoral Pty Ltd (E&B Pastoral) who are described as creditors of Mr Sanna. Mr Horne and E&B Pastoral had lodged caveats on the title of the Copacabana Property and are respondents to the proceeding. However, no appearance has been filed by or on behalf of either Mr Horne or E&B Pastoral. Despite that, Mr Byrd says in his email that Mr Horne and E&B Pastoral support Mr Sanna’s application. They do so because they are of the view “that there are matters to be determined as to what ‘value’ the trustee would have to pay to Sanna, and if the whole ‘value’ then the sale by the ‘Trustee’ appears pointless. There appears grounds that the trustee has no interest for the reasons provided by Mr Sanna”. Mr Byrd also informs the Court that his clients do not wish to “enter into the proceedings” but rather wish to make their position as creditors known.

Consideration

47    As set out above, Mr Sanna seeks an order in the nature of an injunction preventing the sale of the Copacabana Property pending determination of the relief sought by him in the interlocutory application. The Trustee, Wyse & Young and Defined oppose Mr Sanna’s application. Only the Trustee and Defined made submissions.

48    In considering whether an interlocutory injunction should be granted the Court addresses itself to two main inquiries: first, whether the applicant for the injunction has made out a prima facie case in the sense that if the evidence remains as it is there is a probability that at a trial of the action he will be successful; and secondly, “whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction was granted”: see Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-623. The latter inquiry is an assessment of the balance of convenience.

49    I turn to consider whether Mr Sanna has made out a prima facie case.

50    Mr Sanna relies on a particular interpretation of s 121(5) of the Act which, as he candidly submits, is not supported by any authority. Section 121 of the Act relevantly provides:

(1)    A transfer of property by a person who later becomes a bankrupt (the transferor) to another person (the transferee) is void against the trustee in the transferor's bankruptcy if:

(a)    the property would probably have become part of the transferor's estate or would probably have been available to creditors if the property had not been transferred; and

(b)    the transferor's main purpose in making the transfer was:

(i)    to prevent the transferred property from becoming divisible among the transferor's creditors; or

(ii)    to hinder or delay the process of making property available for division among the transferor's creditors.

…

Transfer not void if transferee acted in good faith

(4)    Despite subsection (1), a transfer of property is not void against the trustee if:

(a)    the consideration that the transferee gave for the transfer was at least as valuable as the market value of the property; and

(b)    the transferee did not know, and could not reasonably have inferred, that the transferor's main purpose in making the transfer was the purpose described in paragraph (1)(b); and

(c)    the transferee could not reasonably have inferred that, at the time of the transfer, the transferor was, or was about to become, insolvent.

…

Refund of consideration

(5)    The trustee must pay to the transferee an amount equal to the value of any consideration that the transferee gave for a transfer that is void against the trustee.

…

Meaning of transfer of property and market value

(9)    For the purposes of this section:

(a)    transfer of property includes a payment of money; and

(b)    a person who does something that results in another person becoming the owner of property that did not previously exist is taken to have transferred the property to the other person; and

(c)    the market value of property transferred is its market value at the time of the transfer.

51    As set out above in Sanna (No 1) the Court found, among other things, that the Copacabana Transfer was void against the Trustee pursuant to s 121(1) of the Act. The effect of that finding was that, from the date of Ms Sanna’s bankruptcy, Mr Sanna held the Copacabana Property in trust for the Trustee and was accountable to the Trustee for the proceeds of any sale of the Property or part thereof as for money had and received: see Anscor Pty Ltd v Clout (Trustee) (2004) 135 FCR 469 at [43]. Given that, Mr Sanna now has no real interest in the Copacabana Property.

52    The question of the consideration to which Mr Sanna is entitled under s 121(5) of the Act was the subject of consideration in Sanna (No 1) and was determined after a contested hearing in which Mr Sanna participated. Relevantly, a finding was made that the value of the consideration that Mr Sanna gave for the transfer was $818,000: see Sanna (No 1) at [137]-[138] (extracted at [12] above).

53    The relief sought by Mr Sanna in his interlocutory application seeks to re-litigate that issue. To that extent it constitutes an abuse of process: see Walton v Gardiner (1993) 177 CLR 378 at 393.

54    In any event, the argument which Mr Sanna now seeks to make about the interpretation of s 121(5) cannot, in my opinion, be sustained. The plain meaning of the subsection is that the Trustee must pay to the transferee an amount equal to the value of any consideration that he/she gave for the transfer that is found to be void against the trustee. Use of the past tense “gave” indicates that it is the equivalent of the value that was in fact paid by the transferee that is to be reimbursed in order to put the transferee in the same position as he or she would have been in had they not entered into the impugned transaction. That that is so is reinforced by a reading of s 121 as a whole and, in particular, having regard to s 121(4) in combination with s 121(9)(c). That is, the value of any consideration paid to a transferee is to be assessed at the time of the transfer.

55    There is nothing in s 121 of the Act, including having regard to its purpose, which supports the contention put by Mr Sanna that he is entitled to recover the present day value of the amount he paid at the time the transfer at time the relevant transaction was effected.

56    For those reasons Mr Sanna has not made out a prima facie case for the relief he seeks in the Interlocutory Application. Accordingly, it is not necessary for me to consider the issue of the balance of convenience.

57    It follows that Mr Sanna’s application must fail.

conclusion

58    As Mr Sanna has failed to establish an arguable case for the relief he seeks, paragraph 4 of the Interlocutory Application should be dismissed.

59    Mr Sanna accepted that if he was unsuccessful, he should pay the Trustee’s and Defined’s costs of the application. However, he requested that the Court reserve on the question of Wyse & Young’s costs. Accordingly, if Wyse & Young wishes to seek an order for its costs it should provide a submission of no more than two pages in support of that application within seven days of the date of publication of these reasons. Mr Sanna is to provide any submission in response, not exceeding two pages in length, within 14 days of the date of publication of these reasons. If that occurs I will determine the question of Wyse & Young’s costs on the papers.

60    I will make orders accordingly.

Associate:

Dated:    26 March 2021

SCHEDULE OF PARTIES