Page v McKensey [2008] NSWSC 147

Page v McKensey [2008] NSWSC 147

The claims against Mr Page as judgment debtor and for costs were treated as assets of the five member partnership, and the separation agreement operated as an agreement that all Forsythes (Old) assets not taken by the retiring partners would be retained by the partners of Forsythes (New), with the interests of Nelson and Hewitt paid or adjusted under that agreement. Because Nelson and Hewitt had no remaining interest in the judgment or costs claims when they executed the releases, the releases did not prevent McKensey, Lewis and Hicks from obtaining leave to assess and enforce the relevant costs order and to issue execution on the judgment.

Jurisdiction
Australia
Judgment Date
28 February 2008
Procedural Posture
Consequential Orders; Judgment on Notice of Motion / Amended Notice of Motion by Three Defendants/applicants and Notice of Motion by the Plaintiff/respondent After Earlier Judgment and Costs Orders
Outcome
Leave granted to Messrs McKensey, Lewis and Hicks to enforce the judgment and the amended costs order; Mr Page's motion for release failed on its main claim and further submissions were to be heard on the stay issue.
Legal Topics
['enforcement of Joint Judgment' 'enforcement of Costs Orders' 'separation Agreement on Partnership Dissolution' 'specific Performance' 'release by Joint Creditors' 'equitable Assignment of Partnership Assets' 'leave to Issue Writ of Execution']
['partnership' 'contracts' 'judgments and Orders' 'equity'] ['enforcement of Joint Judgment' 'enforcement of Costs Orders' 'separation Agreement on Partnership Dissolution' 'specific Performance' 'release by Joint Creditors' 'equitable Assignment of Partnership Assets' 'leave to Issue Writ of Execution']

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Procedural Posture

Consequential Orders; Judgment on Notice of Motion / Amended Notice of Motion by Three Defendants/applicants and Notice of Motion by the Plaintiff/respondent After Earlier Judgment and Costs Orders

Legal Issues

  1. 1 ['Whether three out of five original joint creditors were entitled to enforce a money judgment and costs orders against a judgment debtor and a person subject to costs orders not yet quantified.' 'Whether the judgment debt and claim for costs were treated as assets of the five member partnership and retained by the continuing partners under the separation agreement.' 'Whether releases given by two of the five joint creditors released Mr Page from the judgment debt and costs claims.' 'Whether the Court should grant leave for the applicants to proceed to assessment and enforcement and to issue a writ of execution.']

Ratio Decidendi

The claims against Mr Page as judgment debtor and for costs were treated as assets of the five member partnership, and the separation agreement operated as an agreement that all Forsythes (Old) assets not taken by the retiring partners would be retained by the partners of Forsythes (New), with the interests of Nelson and Hewitt paid or adjusted under that agreement. Because Nelson and Hewitt had no remaining interest in the judgment or costs claims when they executed the releases, the releases did not prevent McKensey, Lewis and Hicks from obtaining leave to assess and enforce the relevant costs order and to issue execution on the judgment.

Court Disposition

Leave granted to Messrs McKensey, Lewis and Hicks to enforce the judgment and the amended costs order; Mr Page's motion for release failed on its main claim and further submissions were to be heard on the stay issue.

Orders

  • ['Direct pursuant to UCPR 36.17 that paragraphs 5 and 6 of the orders of 15 March 1996, entered on 8 July 1996, be amended so as to read as specified in the reasons.' 'Declare that Hugh Stanley McKensey, Victor John Lewis and Peter Charles Hicks are entitled to proceed to assessment and to enforce order 6 as...