Leung in her capacity as Executrix of the Estate of the late Robert Ho v Fordyce [2021] NSWDC 522

Leung in her capacity as Executrix of the Estate of the late Robert Ho v Fordyce [2021] NSWDC 522

Louise Aileen Fordyce was entitled to the money paid into Court because the 2019 Assignment, although not perfected at law by notice under s 12 of the Conveyancing Act 1919 (NSW), was effective in equity: the means to perfect the gift by giving notice to Mrs Slattery were in Mrs Fordyce's hands, putting the transfer beyond Mr Fordyce's recall. The later 2021 Assignment could not defeat rights arising under the earlier garnishee order, and the loan and General Security Agreement did not give priority because no loan debt payable to Mrs Fordyce was established and no demand had been made. The plaintiffs did not establish that the 2019 Assignment was voidable under s 37A, and Mrs Slattery's...

Jurisdiction
Australia
Judgment Date
08 October 2021
Procedural Posture
Civil Enforcement Proceedings Concerning a Garnishee Order and Attachment of Debts / Determination of Competing Claims to Money Paid Into Court Pursuant to a Garnishee Order
Outcome
Louise Aileen Fordyce's claim to the money paid into Court was upheld; Mrs Slattery's claims would have been rejected; no order as to costs.
Legal Topics
['garnishee Order' 'attachment of Debts' 'equitable Assignment' 'priority of Interests' 'set Off' 'intent to Defraud Creditors']
['civil Procedure' 'enforcement of Judgments' 'equity' 'personal Property Securities'] ['garnishee Order' 'attachment of Debts' 'equitable Assignment' 'priority of Interests' 'set Off' 'intent to Defraud Creditors']

Case Brief

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Procedural Posture

Civil Enforcement Proceedings Concerning a Garnishee Order and Attachment of Debts / Determination of Competing Claims to Money Paid Into Court Pursuant to a Garnishee Order

Legal Issues

  1. 1 ['Whether Louise Aileen Fordyce had priority over the judgment creditor to the judgment debt paid into Court by Rhonda Slattery.' 'Whether the 2016 loan agreement and General Security Agreement gave Louise Aileen Fordyce a security interest over the judgment debt with priority over the garnishee order.' 'Whether the 2019 Assignment created an equitable interest in the judgment debt despite no notice under s 12 of the Conveyancing Act 1919 (NSW).' 'Whether the 2019 Assignment was voidable under s 37A of the Conveyancing Act 1919 (NSW).' 'Whether Rhonda Slattery had set-off or other claims reducing the amount payable under the garnishee order.']

Ratio Decidendi

Louise Aileen Fordyce was entitled to the money paid into Court because the 2019 Assignment, although not perfected at law by notice under s 12 of the Conveyancing Act 1919 (NSW), was effective in equity: the means to perfect the gift by giving notice to Mrs Slattery were in Mrs Fordyce's hands, putting the transfer beyond Mr Fordyce's recall. The later 2021 Assignment could not defeat rights arising under the earlier garnishee order, and the loan and General Security Agreement did not give priority because no loan debt payable to Mrs Fordyce was established and no demand had been made. The plaintiffs did not establish that the 2019 Assignment was voidable under s 37A, and Mrs Slattery's...

Court Disposition

Louise Aileen Fordyce's claim to the money paid into Court was upheld; Mrs Slattery's claims would have been rejected; no order as to costs.

Orders

  • ['The amount of $63,389.40 held in Court be paid to Louise Aileen Fordyce.' 'These orders are stayed pending any appeal or application for leave to appeal from them.']