clr/1966/1966_1_119.pdf

(4)and 50 <?). Iraudu/em Transfers Avoidance Law. Cap.

1. section
2. Civil Procedure Law. Cap. 6, section 23 and the Courts of Jus/ice Law l % 0 [l.aw 14 of I960), section 25

(3). Appeal - Practice. Disclaimer New trial of liankruptcy- Contract rights- thereunder -Issue consideration accompanied disclaimer- of t'owry -• of whether valuable New trial ordered on such issue under section 25

(3)of the Courts of Justice Law. I960 (Law 14 of I960). Practice—New trial—-Hankruptcy- See under " Appeal" above. [ly virtue of a contract of dowry dated the 2nd April. 1959, the appellant on the occasion of the betrothal of her daughter FIN undertook to give to her the upper part of hcr(appellant's) house at Iphigcnia Street l.imassol. The husband of her said daughter having incurred debts and having unsettled debts totalling about £3,000 for which the daughter as his guarantor was unable to pay, a bank­ ruptcy petition was presented against the daughter on the 15.12.00 and a receiving order obtained on the 30.12.60 and on llic 3rd March, 1961 she was declared bankrupt. The appellant on the5lh September, I960, obtained a written declaration (exhibit 8) from her said daughter andson-in-law, 119 1 9 6 5 whereby, any right o f lheirs on a house at Iphigenia Street. *"!""' 1966 M.ircu ο which house was designated in the contract o f d o w r y to be given to them was foregone. The said d c c l a r a l i o n is set out in f u l l in the j u d g m e n t o f the Supreme C o u r t which follows. liVANTIHA As there were no other assets f o r the creditors to meet the I. KOISAI'A proved debts II. o f the B a n k r u p t the Trustee in bankruptcy 'I'm· O M I C I A I . applied t o the C o u r t f o r a declaration inter alia that the said RECEIVER declaration was void as being c o n t r a r y t o s. 3 ( l ) ( b ) and s. 46 A M » RFinsI'KAR 0 f i| K . B a n k r u p t c y Law C a p 5 and being in the nature o f a v o l u n t a r y settlement or conveyance or an attempt to execute either; that such a transaction was v o i d against the applicant as being fraudulent w i t h i n the meaning o f section 3 o f the F r a u ­ dulent Transfers Avoidance Law. Cap. 6 2 ; and even i f such a transaction was viewed as a contract it had no legal effect because it lacked consideration and was not executed in good f a i t h . The A p p l i c a n t Trustee further applied f o r ( I ) an order that the a p p c l l a n l transfer and deliver up vacant , possession of the house in question t o the a p p l i c a n t ;

(2)an order o f c o m ­ pensation i f she was unable t o transfer it and

(3)any o i d e r the Court other might deem proper. The t r i a l Court declared as per the a p p l i c a t i o n and ordered the appellant l o transfer and d e l i v e r up vacant possession o f the house in q u e s t i o n t o the trustee in b a n k r u p t c y . A g a i n s t this decision the appellant appealed m a i n l y on the g r o u n d that the t r i a l Court was w r o n g in its f i n d i n g s o f fact and in law. It was m a i n l y argued on behalf o f the appellant o n appeal that the C o u r t was w r o n g in l a w i n h o l d i n g that the c o n t r a c t o f d o w r y was a chose in action f o r m i n g p r o p e r t y capable o f being d i v i s i b l e a m o n g creditors in view o f section 4 ! (c) o f C a p . 5. O n the other hand it was argued o n b e h a l f o f the respon­ dent that the f i n d i n g o f the C o u r t was s u p p o r t e d by evidence that the object o f the aforesaid letter was t o p u t Elu's p r o ­ perty out o f reach o f the c r e d i t o r s . T h e m a i n legal issue to be decided was whether the d e c l a r a t i o n made by the Bank­ r u p t and husband r e n o u n c i n g their r i g h t over the house o f the appellant was made in g o o d faith and was accompanied w i t h valuable c o n s i d e r a t i o n . The Supreme C o u r t in a l l o w i n g the a p p e a l : Held, I. ( I ) T h e c r u c i a l t i m e f o r ascertaining the existence o r n o n existence o f f r a u d , g o o d f a i t h and valuable conside­ r a t i o n was at the t i m e the d e c l a r a t i o n , was executed that 120 is the 5th September. I960 On that day I Hi was as lai as the evidence goes in eontiol ol pioperly to a value enough to cover her debts.

(2)The subject-matter under consideration, being a house, the judgment debtoi is entitled to the exemption as 1965 Nov. 23, 1966 March 2 EVANTHIA I KOTSAPA provided bv section 23 of the Civil Procedure Law, C a p 6 D. Ol course the exemption ol the house of a judgment debtor THF OFUCIAL from sale is limited to what is absolutely necessary for the REf EI\ER accommodation oi' himsell and his family Hut this shows that α house is not readib available for the realization of debts due to creditois AM» RrGlSTRAR

(3)We feel that the Com I ought to have been slow in .itintuiting anv intention to (he appellant οι to I Mi. hci daughtei to deleat the cicdilors when the latlei renounced her claim to the house of the lor'iner We a i e of the opinion. therefore, that the document ol the 5ih September, I960, was made in good iailh without the intention to defraud any crcditoi Held II. On the iwue of uduuble lonstderatton

(1)H u m a peiusal ol the tual Court's judgment as a whole, we have reached the l o n t l u s i o n that what must ha\e ically swaved. to a consult!.ihlc extent the minds ol the tual C ouil in I Hiding against appellant on this issue and in disbelieving her version m isi have been the fact that the Cοtut had ah t a d ) Inst ιcached the conclusion that at the lime ol the s i g n m : ol exhibit S, the bankrupt daughtei ol appellant Γ Mi, was ui able io meet her obligations, without the aid ol the house in question and that exhibit X was not signed in good tailh but with I'ltenl to defiaud the n e d n o r s ol the siul hankuipl

(2)As a l i e i d y held b\ tis in t h i s iiidgmenl, ιhe coiulusion ol llic tual Cotul that L\hil>il,K has not been signed in good faith is. in our opinion, cironcous and it is also erroneous, in our opinion, to say that at the material time the bankrupt ΓΙΙι could not meet hci obligations without having to use also, toi the purpose the house in question

(3)We have, theiefoie, lonncd the view that it is p i o p e i , in the inieiests ol justice, to set aside the saitl finding οι the trial Coin I on this issue ol \aluable consideration ind to ordei. undei section 25 O ) ol the Courts of Justice Law I960. a new tual on such issue, bcloic a diffeiently constituted Court Λ,φ<αΙallowed Ni» tual otdeied in the aho\e terms Lach patt\ to bear o\.n m\ts here and tit Court below 121 1965 Nov. 23, 1966 March 2 LVANMIIA t. KlVJSAI'A />. I III OlFICIAl. RrCEtVtR ΛΜΙ> RldlSlRAR Appeal. Appeal against the judgment o f the District Court o f Limassol (Loizou, P.D.C & Malachtos, D.J.) dated the 5th May, 1965, (Bankruptcy Petition N o . 6/60) whereby it was declared, inter alia, that a letter dated 5th September, 1960, addres­ sed to appellant by her daughter and son-in-law was void and was not executed in good faith and for good consideration. Chr. Demetriades, Μ. Μ. Homy, for the appellant. for the respondent. Cur. ad\ \nh. The judgment o f the Court was delivered by.: Zi M A , P. : The relevant and material facts in this appeal arc briefly as follows : The appellant, the mother o f FIN M i m i Demetriou o f Li­ massol, the bankrupt, on the occasion o f the betrothal of her saitl daughter to M i m i Demetriou o f Limassol, under­ took to give to the said daughter as dowry by virtue o f a contract o f dowry, dated 2nd A p r i l , 1959, the upper part o f her (appellant'

1. s)house at Iphigcnia Street, Limassol, and the necessary furniture. The father o f the bankrupt, by the same contract o f dowry, had undertaken to give to his said daughter property o f con­ siderable value- with certain subsequent variations as to the property to be transferred which variations were the subject o f litigation before the trial Court—which was transferred to her. The trustee did not, after the decision o f the lower C o u r t , pursue the matter any further against the father. On the 21st June, 1959, the marriage o f Elli, the bankrupt, w i t h M i m i Demetriou was solemnized. The husband led an extravagant life, spent lavishly his money and that o f his wife and also indulged in speculative business. He contrac­ ted loans f r o m various persons and banks amounting to several thousands o f pounds to many o f which his wife ap­ pears to have stood as surety and on certain occasions his mother-in-law guaranteed such loans. Elli sold before the presentation o f the application in bankruptcy almost all the properties she got f r o m her father and passed the proceeds a m o u n t i n g to about £19,500 to her husband w i t h a view to settling his debts. In 15 months f r o m the time o f his enga­ gement to the time o f his departure to England, in December, 1960, he contracted loans amounting to £26,000 .The appellant, as guarantor o f her son-in-law, paid £3,000 and also advanced another £600 in cash. 122 Thcic remained unsettled debts totalling about £3,000, foi which hlli was his gu.n.inloi, she being unable to pav these debts, on the 15lh Deccmbei, I960, a bankruptcy pe­ tition was presented against h c i , and a receiving oider was obtained on the 30lh Deccmbei, 1960 On the 3rd March, 1961, she was declared K i n k i u p t The appellant, on the 5th September, 1960, obtained a writ­ ten declaration from her daughter Elli and son-in-law M u m , foregoing any right they hado n the house at Iphtgenia Street, Limassol, above the Chaitered Bank premises, which house was designated in the contract o f dowry The said declaiation was produced as Exhibit N o 8 to the C o m I below Exhibit 8 leads as follows "Limassol 5th Scptembei, I960 "Mrs Evanlhia Ε Kynakides, ΕV DECLARATION We the undersigned, I Ι ι M i m i Demetriou and Minus Ρ Demetriou heieby declaie as follows According to the conliact o f d o w i y o f the 2nd A p r i l , 1959, at the sec o f K i l i u m , it is stated that M r s E.anthia Ε Kynakides gives her house ab.n'e the Charteied Hank at Ifigenias Stieet, 1imassol, as dowry to her daughtei Elh Μ Demetriou It is to-day heieby decided and declated that theie is no claim on the above house whatsoever on bchall ol the undersigned andconsequently she i c m a i n s a n d will i c m a i n ocxupiei o f the said piemises (Sgd) H l i Μinn Demetriou (Sgd) Μ Ρ D e m c l i t o u ' As theie weie no other assets l o r the creditors t o meet the proved debts o f Elli (the bankrupt), the trustee in bankruptcy applied to the C o m l for a declaialion inter alia (
2. a)that the letter dated 5th September, 1960 (apparently r e f c i n n g to Exhibit 8), addressed to icspondeiU 2, disclaiming any light over the house o f the appellant, was void as being contrary to section 3

(1)(

1. b)and section 46 o f the Bankruptcy Law, Cap 5, and being in the nature o f a voluntary settlement or conveyance o r an attempt to execute either ; ( b )such a tran­ saction is void against the applicant as being fraudulent 12* 1965 Nov 23. 1966 Maich 2 E\ANT11IA 1 KorsAPA v. ΓΜΓ OinciAi RfCElVLR AND RFGISTRAR i y ^ Nov -3, March 2 — within the meaning of section 3 ol" the Fraudulent Transfers Avoidance Law, Cap. 62 ; (
2. e)even if such a transaction is viewed as a contract it has no legal effect becuase it lacks considcration and is not executed in good faith. Γν·\νΠ(|Α ι. ΚΟΙ*ΛΙ·Λ ''mi: OIMUAI Ri; rr. ER ',, The applicant Trustee further applied

(1)for an order that the appellant transfer and deliver up vacant possession of j | l o u s c j n question to the applicant ;

(2)an order of comt lc pensalion if she was unable to transfer it and

(3)any other order the Court might deem proper. The trial Court, after hearing the evidence, by its judgment declared that the Icltcr, dated 5th September, 1960, purpor­ ting the discharge of the appcllanl from any liability under the contract <>f dowry to transfer her house, described above, to her daughter Elli, was void on the ground staled in the application and ordered the appellant to transfer and deliver up vacant possession of the house in question to the applicant (respondent in this appeal) in his capacity as Trustee. I'hc main grounds of the present appeal arc : I he trial Court was wrong (A) in its findings of fad and (H) in law. (A) It was contended that the Court was wrong in holding ifiat the document of the 5th September, 1960, signed by Elli, the bankrupt, and her husband, acquitting the appellant of the liability to transfer the house in question, was a settlement not made in good faith and for a valuable consideration. The appellant had stood as guarantor to the husband of Elli for sums totalling £3,000 and also paid to him £600 in cash. This constituted adequate consideration inasmuch as the value \A' the house to be transferred did not exceed £3,600, the house being rented al £9 per month. On the other hand Elli, at the lime of the execution of the document in question was quite solvent. She owned property at Plalres worth £0,000 and her liabilities at that time did not exceed that sum. It was further contended that the time which elapsed be­ tween the closing of the hearing of the application before the lower Court and the delivery of its judgment was 25 months and, as a result, the trial Court lost the advantage it had over the Court of Appeal in estimating the credibility itf a witness in this ca.se, namely, the evidence of the appcl­ lanl, relating to good faith and to the allegation thai the gua­ rantee was signed on the understanding that E.lti and Mimi renounced their rights under the contract of dowrv. 124 It was argued on behalf of the appellant that— (

1. i)the Couil was wrong in law in holding thai ιhe con­ tract of dowry was a chose in action forming pioperly capable of being divisible among creditors in view of section 41 (
2. c)of Cap. 5 ; 1965 No\. 23, 1966 March 2 EVANTHIA 1. KOTSAPA l>. (
3. ii)the execution of the document of the 5th Sepiembei, 1960, was not a settlement or transfer οΐ property, but it was a release of obligation ; (iii) this was not a procetdiug under section 47 of pre­ ferring creditor ; and thai . (
4. iv)the Court had n<> power to grant relief (f), I hat is,
5. it)order appellant lo transfer the house in question to the Trustee. The appellant could effectively op­ pose α claim for specific performance under the conh a d of dowiy ami she could claim a set off of f',600 paid by her , any ughls undei the contract of d o w n , if not lost, could only pass lo the Trustee subject lo the same equities and liabilities before the bankruptcy. fhe icspnndenfs counsel on the other hand su'imiucd that the finding o\' the Comι is supported by evidence that the object "f the leltei dated 5lh Scplunhir, I960, was to p'll Mli's piopeiiv out of reach of the creditors and at the lime she signed the letter in question she was under constant piessuie of the eieditors Ability to pry does not arise \.hcn a settlor becomes bankrupt within two years after the settlement 1 he appellant did not ask esemphon o\' the house Ιοί heι accommodation The Court acted under section 50

(2)of Cap. 5 The I riistee claimed the transler o( the house οι compeiisalion This was ;i claim foi an order in r -iv foi possession o\' land. We piopose lo deal first with the legal aspect and llren the laclual aspect of the ease flic declaration renouncing any right over the house of the appellant m question, made on the 5lh Sepiembei, l%0, by the bankrupt and her husband. no doubt was in the nature of .ι settlement of property releucd to in seclton 46

(1)o\' the Bankruptcy Law ; section 46

(4)reads : •selllement" shall, for the purpose of this section, uiclude any conveyance or liansler of ptoperty " I Hf OfUClAL RECEIVER \\D RFOISTRAR i9i '5 N(n 21. |9,tifJ Μ.ικΙι 1 i\\sim\ ΚΟΙ·.,Μ·\ I 111 O l I It 1 Μ R l ( I IWH Λ ' 11 Rl ί .ISI li \K Settutn 2 ol the same law defines propertv as includmc— . 1 1 . " money, goods, things in action, land, and e\ery deseiiption o f p i o p e i l y whether movable οι immovable, ,\m\ whclhei iiluale m ( yprus oi elsewheic , also, obhgattons, casements, and every description o f estate, inleiest and profit, piesenl or future, vested οι contingent a i i s i n g o u t o f oi incident lo property as abo\e defined ". R c l u i e ol obligation is, iheteforc, a settlement within the meaning ot section 46

(1)o f the Bankruptcy Law Refcicnce was made by learned counsel for the appellant to Halsb u i y - l a w s \>\' I ngland. Volume 2, paragraph 1086 and to W r i u n i · . on H a n k i u p l t y , 16ih edition, page jr>0 We went into ιhe aulhoiitics i c l a t i i i j ' l o the release o f claim mentioned in these hooks These authoiilies icfci to cases wheie the bank ι upi d i d not possess inlciesl foi himself but Ιοί olhets and l l u n f o i e lhoy are not applicable lo the instant case Section 41 o f the Hankiuptcy I aw iclates to the bankrupt's p i o p i r t \ divisible amone the u e d i i o r s It leads Iht p i o p e i l ) of the h i n k i u p t divisible annum Ins cied i l o i s in t h · . law n-leiicd to .is the piopeit\ of the bank H I pi shall compnsc ιhe foilowing pai lieulaιs (h) ihe capacil) lo ,.\ucise and to take proceedings lor i x e i t i s i u g all siali p o u t is <n and ovei oi in lespecl of ptopeitv as might ha\c been exeicised by the b.iukiupl loi hi·-, own beneiu at the commencement o f his banki upley or I x t o i e bis d u t haige " I fie I n i l C o u r t , i h e i c i o i e nghtly duecled itsell that the πι,.in ie M I is-αι- (O be tlei u l t d was one, namely, uhethei the Λ J a ι.>lion madi. by Ihe bank ι upt and hci husband icnoii'KΊΐ [ Π κ ΐ ι light o \ u the house ol ihe appellant η , ι . made in ; ' " o d ' Ί . Ι Ι ami ν as a u o m p n n i c d with valuable consitieiation Αρρι Μ ml s 11MIUΛI ^ubunlU tl that the Court could not ία Ί it'hci in the way il d i d , l l u l is, it could not declaie the t h u u i i i n i :l »h- 5!h St ptcmhei, I960, void as heinu f i j u d u it in <ι\\<Κ· the 1lai^'nlcni I lanslei Avoitlence I aw, C ap 6/ ·ιι.! being ι \t tilled v.iihout good faith and \aluable t o n 1 >!.iaii.< j e d - Ί .edion 4·* (\) ol Ihe ltankiur>,c\ Law It w ! ''"iirtii ι submitt'-ff th;.l the Court could not order a p i t l ' a i ' - » h inslei .intl d t h \ e i up \acaul possession o f hci i?i. house to the applicant trustee. Wc prefer to deal with this ground of appeal after going into the facts of the case. The Court recorded its findings in ils judgment as follows : " In considering the case of Resp. No. 2 either under s. 46

(1)of the Bankruptcy Law or s. 3 of the Fraudulent Transfers Avoidance Law, the only question for the Court to decide on the evidence adduced is whether the settlement and/or transfer of the property was made in good faith and for valuable consideration. It is clear from the evidence adduced that the bankrupt at the time the chose in action was settled and/or transferred lo this respondent was unable to meet her obligations without the aid of the said properly. Both Resp: No. 1 and the bankrupt slated before this Court that at that lime they knew that the husband of the bankrupt was hea\ily indebted and that for every debt his wife (the bankiupl) was his surety. It is also clear that the dcclatation dated 5.9.(0 ( l \ h . 8) makes no reference of consideration either past or present. We don't accept the evidence of the Resp. No. 2 and her witnesses on ihe question of consideration that an agreement was made after this respondent signed as surety for the sum of L2.0O0 lo (he Chartered Bank to the effect that iht Bankiupl and her husband would sign a declaration that Ihey would have no claim on the house any more. Mad it been it so the declaration, fi>.hibil 8, should be signed on die very same day this respondent signed as sniety, as she knew even before the marriage that her son-in-law was among other things a spendthrift. We must further sa\ thai from the evidence adduced as we have aeeepled it, il can reasonably be inferred that the settlement and/or translei of the pioperly in question was not made in good faith but with intent to defraud the creditors of the bankiupl. For the reasons staled above the selllement and/or hansfer of property under consideration is void against ihe trustee in bankruptcy under s. 46

(1)of the liankruplcy Law CAP. 5 as well as fraudulent and invalid under s. 3 of Ihe Fraudulent Transfers Avoidance Law, CAP. 02". In our view the Court below, on the evidence before them, went too far. The euicial lime for ascertaining the existence or non-existence of fraud, good faith and valuable considera\? 1965 Nov. 23, 1966 March 2 EVANTHIA I. KOTSAPA o. THE OFFICIAL RECEIVER AND REGISTRAR ]l}< " Nl Hon was al the time the tkclaiaiion, 1xhibit 8, was executed, 3 |y66 ' Ma,j, ' l , u l iM f" ls a s ' l h c J [ U s ° P t c m b c i ' i 9 6 0 · ° n l h a t da>' F l h Wii>. a s her evidence goes, in control of property to a value — enough to co\ci hci debts M r ^""v minei in charge of the Hankiuptcy Andicas Hardjiohs, the LxaSection in the Official RccciwTs Office, did not contradict Flh on this point To a ,„ ί,!·ι ,,, question put to him as to I Mi's liability on the 30th August it,· m o i960, ins icply was, " It is very difficult to k n o w " ο I*J .IMK\K , l s ίο the indebtedness ol the husband was of a genetat cha- Fvidence i ictei >\nc\ it is by no means clear how ΪΛΓ his eieditors' nghts on the date the document in question was executed might ha\e been alleOcd by the non-tiansfer of the house in the Μline ol his wife Appellant's mind, on ihe other hand, was dominated b\ the leai of having hci house tlu pioteeds sqnandeied sold by hci son-in-law ,MK\ I his seems lo u- 11> be the icison- able ink r cue t In lie thaw η fiom the e\idence adduced It was natutal loi hei to wish lo keep hei house in het hletime .\\~\c\ to exert all hei powei in (hat dnechon In doing so, the ιηlention to dekai any cieditoi of her da ugh lei law could baulk enlti hci mind oi son-in- We cannot s,i\ lhat at the lime she knew that her daughter was oi would become an in-olvent peison in the ικαι fuluie I oi fuitue uedito»s ol Ik ι daughtei and sou-in-law she could not be held itspottsible in . H I ) way I he siib|ccl-inatlei untieι consideiation, benu α house, Ihe pidguicnt debloi is ail''led lo ihe exemption as provided b\ section '.Vi o| ihe Civil I'toteduie l a w , Cap 6 Of comse tht i s t i u p h o n <·) the house ol a judgment dcbtoi ftout sale κ hmiictl lo what is absolutely necessary for the ;kt'>nimodalio'i <>f hiinsel! anil his l,iu;il\ But this shows that α house is tioi i.-adib available loi Ihe ieali/αΐιοη iA' debts Λι\\: \o t 1 etblois Secti< MI 'YJ -·! the Bank ιuplcy l a w leads I he follow ι:ig shall not foim pa11 ^A' ihe bank ιupt s pioin. 11ν divisible ιinnin' he- cieditois u nnelv, fh) ail poipei 1\ as \*onk| be exempt fiom execution uiklei .up. 'aw Όι ι ΐ κ lime being m foice in Ο pin-." We i\\\ lli.it the * oiu ι ou/hl to h.ive been slow in .ttiihui πι' am niieu'i'in to IIn. a| pel laill oi to Lib, hi ι daughtei, I·» tLft.it the ι ledtlois wlk η ihe lattci lenouik e-ί hei claim 1 ι t h e h o u s e ol t h e l o i n u t 1\S Wc aie o f the opinion, there.ore, that the document ol the 5lh Seplcmbci, 1960, was made in good faith without the 1965 intention lo deliaud anv cieditoi March ° There lemams, howevei, anolhei sei IOUS point to be t o n - * sideied, namely, whet hei valuable consider.ition a n o m p a med ihe declaration o f the 5m September, I960 The finding o\' ihe h i a l Court m this respect is in the ne­ gative I rom the p a i l o f ihe judgment o f the trial Court, which has already been quoted, η appeals that it did not accept m tins lespect the evidence o f the appellant and her witnesses , the Court has given, as out ol its teasons for not accepting such evidence, the fact thai the declaration, exhibit 8, was not signed on the veiy same day when appellant signed the guarantee, with the Chaiteicd Hank, for £2,000 From α pciusal ol the tual * ouit's ludgmcnl, as a whole, we have icaclied the L O I H I U M O I I thai what must have icailv swayed, to a considerable extern, the minds ol the tual Court m finding against appellant on this issue, and m dishehewng hei vcision, must have been the l.ict thai the Court had alicady fust ιcached the conclusion thai at the lime ο! ι tu signing ol t x h i b i t 8, the banki upl daughter ol appcllanl I Hi was unable l o nice! hei obligations, w i l h o u l the aid >t the house in question, and thai exhibit 8 was not signed in good faith but with ιmenI lo delιαml the a e d i h a s o f ιhe said b a n k i u p l As aheady held by us in this judgment, the conclusion ol the t u a l ( o u i i thai exhibit 8 ha not been signed in good u u h is, in out opinion, ei.oneous autl Μ is ilso eiioneous, η oui opinion, to say that n ihe m a t e i n l tune the bankiupt I Hi. could not meet her obligations without having to use, also, foi the puipose the house in question It is, io out mind, quite possible, to say the least, thai had Ihe hial Court not kibouied i n u l a the conclusion t i n t ihe appcllanl had acted in bad faith and with intention to d.Jiaud the eteuiiois o\' a bank ι upl vvtiose p i o p e i t y was not other­ wise sulTiticiil lo mei 1 hei liabilities, tt would not nete-sanly have ιcacbed ihe same c o i u h i a o n as it has regarding the ab­ sence o f valuable c o n s i d a a t i o n We have, thcieloie, loi med 'he view that it is proper, ιη the inteicsts o f Justice, to sel as tie the said finding o f the t n a 1 I:·' ,_,,. ' Γ\ \ΝΠΙΙ* ' K(,lsv,'v η [ i l l OlFK IAI R l ( FIVlR \ND RLC.IMKAK 1965 Nt Court on this issue ol valuable consideration and to order, 3 1966 ' March 2 tvAs.rni\ l ΚΟΙ-ΛΙ-Λ I in Οι ι rti\i Kit ι IUR %M> KI'.ISHMK U n d c r t n a ' s c c t l o n o n s u c ' ! 2 5 3 r llu ( ) ° -' Courts of Justice Law I960, a new > bcfoic a differently constituted Court I;,suc Should at such new t u a l the Court teach the conclusion, f r o m all relevant ciieunislanccs as they may be established by the evidence lo be adduced, that the settlement, exhibit 8, was made loi valuable consideialion, then appellant would be entitled to judgment in het f a v o u i , because, we have alread) held lhat she has acted in this mallei in good faith Should, howevei, the ( ourl ιeach the conclusion thai theie is absence of valuable consideiation, then it will have to p i o cecd and considci to what extent, il any, it can giant, in the pioceedings befoie i l , as instituted, the rehel sought uiidci pai.igiaph (T) ol ihe application o f the lespondent , should il i L u d e that il may giant ihe whole or part o f such icliel, then we mi«;hl point out that the piovisions of section 23 o| the ( i\il PioteduiL I aw, should not be lost sight of Appeal allowed New tual ordeied in above tei ills Laeh party to beat own costs here and in ( om t below Γκι \ M vi ν11 ιοί s, J Josi IM Μ ιii s, J I agiec I also agree Ippeal allowed New ti tal ouleied in the above tetnts. Lach pott) to beat own co\t\ bete and in Court below. 130