Mar 17, 2014

Summary of Siemens v. Bawolin

Siemens v. Bawolin, 2004 SKQB 221 (CanLII)
FIAT: The Trustee brought an application for an order declaring that the funds paid into court represent the property of the defendant, Kaspar Gordon Bawolin (Kaspar). This property was transferred by him to the defendant Lynne Ethel Bawolin (Lynne), for no consideration and for the purpose of protecting such property from the creditors of Kaspar and that as such the transfer is voidable pursuant to The Statute of Elizabeth, or alternatively, that the property was held by Lynne in trust for Kaspar pursuant to the common law doctrine of resulting trust. The Trustee sought an order directing that the funds be paid to it.HELD: The application of the Trustee was dismissed with costs to Lynne. Lynne's application for payment out to her of the funds held in court was allowed. 1) It is essential to note that there was no finding in the trial judgment that Kaspar was in insolvent circumstances or on the eve of insolvency in 1994 when this property was purchased. It was for this reason that the Court of Appeal held that the conveyance was not void or voidable pursuant to The Fraudulent Preferences Act. There was no finding that Kaspar had any creditors at all in 1994. The intention attributed to him in the trial judgment related only to the intention to hide assets from potential creditors. 2) There was no evidence and no finding that the effect of the conveyance was to render Kaspar insolvent or that it had the result of denuding him of assets. 3) It is not possible to conclude from the bare findings enunciated in the trial judgment that the conveyance at issue in this case is necessarily void pursuant to The Statute of Elizabeth. That conclusion would require an amendment of pleadings and full argument on the issue. 4) The claim for a declaration of resulting trust would require an amendment of pleadings and further evidence and argument. This is precluded by the fact that the appeal of the decision is final and binding.