Despot v Registrar General of NSW; Dlakic trading as Johnston Vaughan Solicitors v Despot [2014] NSWSC 1303

Despot v Registrar General of NSW; Dlakic trading as Johnston Vaughan Solicitors v Despot [2014] NSWSC 1303

The garnishee order was set aside because, on the ex parte application, Campbell J was not referred to authorities showing that a garnishee order is discretionary and would not normally be made where it would confer a preference on a creditor. In light of the pending bankruptcy petition against Mr Despot, those authorities were relevant and likely compelling against making the order; once the garnishee order was set aside, the funds in Court were to be paid to Mr Despot.

Jurisdiction
Australia
Judgment Date
18 September 2014
Procedural Posture
Interlocutory Applications / Ex Tempore Judgment on Competing Claims to Funds in Court and Garnishee Order
Outcome
Garnishee order set aside; funds in Court ordered to be paid to Mr Despot; Mr Dlakic ordered to pay Mr Despot's costs of the day.
Legal Topics
['garnishee Order Obtained Ex Parte' 'funds Paid Into Court' "creditor's Petition" 'preference to Creditor']
['practice and Procedure' 'bankruptcy' 'enforcement of Judgments'] ['garnishee Order Obtained Ex Parte' 'funds Paid Into Court' "creditor's Petition" 'preference to Creditor']

Case Brief

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Procedural Posture

Interlocutory Applications / Ex Tempore Judgment on Competing Claims to Funds in Court and Garnishee Order

Legal Issues

  1. 1 ['Whether the garnishee order made by Campbell J on 25 August 2014 should be set aside.' 'Whether the funds in Court should be paid out to Mr Despot.' 'Whether making the garnishee order would confer a preference on a creditor in light of pending bankruptcy proceedings.']

Ratio Decidendi

The garnishee order was set aside because, on the ex parte application, Campbell J was not referred to authorities showing that a garnishee order is discretionary and would not normally be made where it would confer a preference on a creditor. In light of the pending bankruptcy petition against Mr Despot, those authorities were relevant and likely compelling against making the order; once the garnishee order was set aside, the funds in Court were to be paid to Mr Despot.

Court Disposition

Garnishee order set aside; funds in Court ordered to be paid to Mr Despot; Mr Dlakic ordered to pay Mr Despot's costs of the day.

Orders

  • ['In proceedings number 2013/44732, the garnishee order made by Campbell J on 25 August 2014 be set aside.' 'In proceedings number 2009/298869, the funds in Court be paid out to Mr Despot forthwith.' "Mr Dlakic pay Mr Despot's costs of today."]