Section 172 of Property Law Act Explained

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The High Court recently  considered s37A of the Conveyancing Act 1919 (NSW) which is the  New South Wales equivalent of s172(1) of the Property Law Act 1958. Section 172(1) provides that:

"Save as provided in this section, every alienation of property made, whether before or after the commencement of this Act, with intent to defraud creditors, shall be voidable, at the instance of any person thereby prejudiced."

French CJ, Gummow, Crennan and Bell JJ approved of a decision in New Zealand where "Their Honours said that it was unnecessary to show that the debtor wanted creditors to suffer a loss or that the debtor had a purpose of causing loss: it was necessary to show the existence of an intention to hinder, delay or defeat creditors and in that sense to show that accordingly the debtor had acted dishonestly".

 See: para [32].  It was not necessary for the wrongdoer to appreciate that the act in question was dishonest judged by the standards of ordinary, decent people. See: para [33].

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Author: Robert Hays Barrister subject to copyright under DMCA.

When is the rent paid?

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Disputes often arise about whether the tenant has paid the rent by the due date in accordance with the lease. The problem usually arises where a tenant posts the rent and the rent is not received by the due date.

The basic rule is that a debtor (including a tenant) must seek out his creditor (including a landlord) and is not regarded as having paid the rent until the remittance actually arrives in the landlord's possession.

The mere fact that as a matter of course the tenant had paid by post does not , without more, indicate that the creditor has authorised use of the post such that the creditor takes the risk of non-delivery or that payment was deemed to have been made from the date of posting.

The authorities are examined in detail by Deputy President MacNamara in Happy Century Pty Ltd v Nezville Pty Ltd (2000) V ConvR 58-546.

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