The Full Court of the Family Court dismissed a couple’s appeal against the Supreme Court’s decision to declare an order for the transfer of property to be void. The Full Court dismissed the appeal as the parties ‘wrongfully’ obtained Consent orders in the joint quest to defeat creditors. The Full Court found that Consent orders which transferred the matrimonial home to the wife, could be varied or set aside as it was obtained by the failure to disclose any creditors which were entitled to become a party to the case.
The couple failed to disclose that there was over $381,000 owing to a creditor. This amount was known to the couple and was the accumulation of cost orders against the husband. The couple were thus misleading in their failure to identify in their application for Consent orders, the existence of a significant creditor to join the proceedings. The wife in this matter argued that the Supreme Court was mistaken in setting the Consent order aside, believing the disclosure of this information in the first instance would not impact the original Consent orders made.
The Full Court referred to the denial of procedural fairness, in dismissing the appeal. This circumstance is characterised by both parties consciously misleading the Court in an application for Consent orders that would defeat creditors. The Full Courts judgement asserts that wrongfully obtained Consent orders in misleading circumstances satisfies the criteria to vary or set aside such orders pursuant to s 79A of the Act.