56 There is Canadian authority for the proposition that, where the parties to the conveyance of property are related and the circumstances are suspicious, there is a presumption that the transfer is voidable: Laurentian Bank of Canada v Glover (Ontario High Court, unreported, 28 July 1998, p 9, citing Koop v Smith (1915) 25 DLR 355 (Supreme Court of Canada)). This probably means no more than that a transferor and transferee being related is a factor relevant to the court's decision on the transferor's intention."
14 The relevant circumstances here, apart from the voluntary nature of the transactions and the absence of evidence from disponor and disponee, are that the disponee was the wife of the disponor, that the debt recovery action was in progress at each relevant time and that, according to search material in evidence, the disponor owns no real property. In those circumstances, and in the absence of any other suggested reason, I am entitled to draw (and do draw) an inference that the intent of the first defendant, in effecting the three alienations, was to put the relevant property beyond the reach of the procedures that the plaintiff had put in train to recover moneys owing by the first defendant to her. She was, at all relevant times, a creditor of the first defendant, as the District Court judgment eventually confirmed.
15 I therefore find that each of the three alienations of property by the first defendant to the second defendant was made with the intent to which s.37A(1) refers, that is, "intent to defraud creditors", with "defraud" here connoting merely "defeat, hinder or delay": Electrical Enterprises Pty Ltd v Rogers (1988) 15 NSWLR 473 at p.497.
16 The final question is whether s.37A(3) operates to displace the operation of s.37A(1). That depends, in the first place, on whether the transferee, being the second defendant, was "a purchaser". That expression is defined by s.7 of the Conveyancing Act as meaning "a purchaser for valuable consideration". The expression, "valuable consideration" is itself defined by the same section in such a way as to exclude merely nominal consideration in money. Logically, there is no valuable consideration if there is no consideration at all, which, on the evidence before me, was the position in relation to each of the three alienations with which these proceedings are concerned. Because the second defendant, as transferee, was thus not "a purchaser", s.37A(3) cannot affect the operation of s.37A(1).
17 My conclusion, therefore, is that the plaintiff has made out an entitlement to relief by reference to s.37A(1) in respect of all three transactions. It remains to consider the form of the relief.
18 The plaintiff seeks, in the first place, declaratory relief in paragraphs 1 to 6 of the amended summons. This relief will be granted as it gives effect to the conclusion I have just stated.
19 There is then a question as to relief dealing with the relevant property. The plaintiff says that a receiver should be appointed, but I do not think that that is appropriate. What is necessary is orders calculated to restore the property to the ownership of the first defendant. Such an order is sought in paragraph 10 with respect to the sum of $147,645.79 and will be made. There should be equivalent orders in respect of the share in the company and the share in the business.
20 The plaintiff further seeks orders giving her an entitlement to the moneys to be restored. I do not consider that to be appropriate. Such an order would entail what amounts to a form of de facto security for or enforcement of the District Court judgment obtained by the plaintiff against the second defendant. The aim of s.37A is to redress depletion of the property of the person who has made the alienation caught by the section. The underlying intent involves restoration of the assets of that person for the benefit of all that person's creditors. It is no part of that design to give any one creditor a secured or preferred position. The relevant objective will be achieved by order 10 in the amended summons and the further order I have outlined, that is, equivalent orders in respect of the share in the company and the share in the business.
21 The position of the plaintiff is, however, deserving of some additional protection, although not to the extent the plaintiff seeks. Mareva orders have been in force for some time. Given the actions of the first defendant that have given rise to these proceedings and the fact that the first defendant has taken no part in them, it is reasonable to infer that the property to be restored to the first defendant will be in jeopardy of dissipation unless some measure is put in place to prevent that. The appropriate course is to make, as against the first defendant, an order of a Mareva kind with respect to the property to be restored by the second defendant to the first defendant. That order should be operative for a limited time only and the first defendant should have liberty to apply.
22 There is a place for the grant of Mareva relief after judgment and in support of a judgment, in appropriate circumstances, with a view to protecting that judgment against possibilities of stultification: see, for example, Babanaft International Company v Bassatne [1990] Ch 13; Commissioner of State Taxation v Mechold Pty Ltd (1995) 95 ATR 69.