Catalano v Managing Australian Destinations Pty Limited (No 3) [2013] FCA 1194

Catalano v Managing Australian Destinations Pty Limited (No 3) [2013] FCA 1194

The garnishee order was refused because Fine Food Solutionz Pty Ltd failed to establish that any monies held by Westpac in the Equicap Fund were presently due and payable to Nathan Catalano. The evidence showed only that the account held trust monies and that Mr Catalano was said to be a trustee; it did not establish the nature of the trust or any beneficiary entitlement. Section 117(2) of the Civil Procedure Act 2005 (NSW) did not overcome the need to show that trust monies in the bank account were debts due or accruing to the judgment debtor.

Jurisdiction
Australia
Judgment Date
13 November 2013
Procedural Posture
Interlocutory Application for Garnishee Order / Ex Parte Application to Enforce Judgment
Outcome
Interlocutory Application dismissed; garnishee order refused.
Legal Topics
['power of Federal Court to Make a Garnishee Order' 'debt Due or Accruing From Garnishee to Judgment Debtor' 'trust Monies Held in Bank Account' 'discretion to Refuse Garnishee Order']
['practice and Procedure' 'enforcement of Judgments' 'garnishee Orders' 'trusts'] ['power of Federal Court to Make a Garnishee Order' 'debt Due or Accruing From Garnishee to Judgment Debtor' 'trust Monies Held in Bank Account' 'discretion to Refuse Garnishee Order']

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Procedural Posture

Interlocutory Application for Garnishee Order / Ex Parte Application to Enforce Judgment

Legal Issues

  1. 1 ['Whether r 41.10 of the Federal Court Rules 2011 (Cth) permitted the Court to adopt New South Wales garnishee procedures to enforce the judgment.' 'Whether monies held by Westpac in an account in the name of the Equicap Pty Ltd Provident Fund were debts due or accruing to Nathan Catalano within s 117 of the Civil Procedure Act 2005 (NSW).' 'Whether a garnishee order could be made against trust monies where the evidence did not establish that any amount was presently due and payable to the judgment debtor.']

Ratio Decidendi

The garnishee order was refused because Fine Food Solutionz Pty Ltd failed to establish that any monies held by Westpac in the Equicap Fund were presently due and payable to Nathan Catalano. The evidence showed only that the account held trust monies and that Mr Catalano was said to be a trustee; it did not establish the nature of the trust or any beneficiary entitlement. Section 117(2) of the Civil Procedure Act 2005 (NSW) did not overcome the need to show that trust monies in the bank account were debts due or accruing to the judgment debtor.

Court Disposition

Interlocutory Application dismissed; garnishee order refused.

Orders

  • ['The Interlocutory Application filed on 21 October 2013 is dismissed.']