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FAMILY LAW ACT 1975 - SECT 106B

Transactions to defeat claims

             (1)  In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, 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 or which, irrespective of intention, is likely to defeat any such order.

          (1A)  If:

                     (a)  a party to a marriage, or a party to a de facto relationship, is a bankrupt; and

                     (b)  the bankruptcy trustee is a party to proceedings under this Act;

the court may set aside or restrain the making of an instrument or disposition:

                     (c)  which is made or proposed to be made by or on behalf of, or by direction or in the interest of, the bankrupt; and

                     (d)  which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.

          (1B)  If:

                     (a)  a party to a marriage, or a party to a de facto relationship, is a debtor subject to a personal insolvency agreement; and

                     (b)  the trustee of the agreement is a party to proceedings under this Act;

the court may set aside or restrain the making of an instrument or disposition:

                     (c)  which is made or proposed to be made by or on behalf of, or by direction or in the interest of, the debtor; and

                     (d)  which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.

             (2)  The court may order that any money or real or personal property dealt with by any instrument or disposition referred to in subsection (1), (1A) or (1B) may be taken in execution or charged with the payment of such sums for costs or maintenance as the court directs, or that the proceeds of a sale must be paid into court to abide its order.

             (3)  The court must have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.

             (4)  A party or a person acting in collusion with a party may be ordered to pay the costs of any other party or of a bona fide purchaser or other person interested of and incidental to any such instrument or disposition and the setting aside or restraining of the instrument or disposition.

       (4AA)  An application may be made to the court for an order under this section by:

                     (a)  a party to the proceedings; or

                     (b)  a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the instrument or disposition were made; or

                     (c)  any other person whose interests would be affected by the making of the instrument or disposition.

          (4A)  In addition to the powers the court has under this section, the court may also do any or all of the things listed in subsection 80(1) or 90SS(1).

             (5)  In this section:

"disposition " includes:

                     (a)  a sale or gift; and

                     (b)  the issue, grant, creation, transfer or cancellation of, or a variation of the rights attaching to, an interest in a company or a trust.

"interest " :

                     (a)  in a company includes:

                              (i)  a share in or debenture of the company; and

                             (ii)  an option over a share in or debenture of the company (whether the share or debenture is issued or not); and

                     (b)  in a trust includes:

                              (i)  a beneficial interest in the trust; and

                             (ii)  the interest of a settlor in property subject to the trust; and

                            (iii)  a power of appointment under the trust; and

                            (iv)  a power to rescind or vary a provision of, or to rescind or vary the effect of the exercise of a power under, the trust; and

                             (v)  an interest that is conditional, contingent or deferred.



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