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Wednesday, 27 November 1974
Page: 2878

Senator EVERETT (Tasmania) - I move:

Insert at the end of sub-clause ( 1 ) the following: or which, irrespective of intention, is likely to defeat any such order'.

I also move:

In sub-clause ( I ) delete the words 'if it' and substitute the word 'which'.

Sub-clause 64 ( 1 ) as amended would read:

In proceedings under this Part, the court may set aside or restrain the making of an instrument or disposition by or on behalf or. or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings for costs, maintenance or the declaration or alteration of any interests in property or which, irrespective of intention, is likely to defeat any such order.

Clause 64 as printed is in terms similar to Section 120 of the existing Act and the general purpose of it is to give the court power to set aside instruments or dispositions which are made with the intention of defeating orders or claims pursuant to the statute.

The courts have interpreted that section in the existing Act as necessarily involving an intention on the part of the person making the instrument or disposition to produce that effect. There are a number of decisions on those lines. So the section at the moment is ineffective unless an intention to defeat claims can be proved and that is often extremely difficult. The Committee on Constitutional and Legal Affairs considered that the words which I seek to add at the end of subclause ( 1 ) were desirable; in other words, that irrespective of intention, if the making of the instrument or disposition had the effect of defeating claims then it was liable to be set aside by the court. I simply add that since the power is discretionary the court would always have the power to protect bona fide purchasers for value.

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