Rubino v Pineview Property Holdings Pty Ltd (No 8); Wyse Accounting Pty Ltd v Lee Rubino as executor of the estate of the Late Alfio Rubino [2021] NSWSC 1028

Rubino v Pineview Property Holdings Pty Ltd (No 8); Wyse Accounting Pty Ltd v Lee Rubino as executor of the estate of the Late Alfio Rubino [2021] NSWSC 1028

The stay was refused because the judgments in favour of Pineview and Ms Huybers were independent of any continuing liability to ANZ and remained enforceable. Pineview remained the legal judgment creditor because there was no legal assignment of the judgment under s 12 of the Conveyancing Act 1919 (NSW), and any alleged equitable interest of the Rubino parties did not prevent legal enforcement against Wyse Accounting. The 2019 proceedings were dismissed because Wyse Accounting had no interest in the substantive equitable rights and obligations between Pineview and the Rubino parties, making continuation of those proceedings an abuse of process.

Jurisdiction
Australia
Judgment Date
13 August 2021
Procedural Posture
Civil Procedure Applications in Equity / Hearing of Application to Stay Enforcement of Judgments in the 2013 Proceedings and Application to File an Amended Statement of Claim in the 2019 Proceedings
Outcome
Stay application dismissed and 2019 proceedings dismissed.
Legal Topics
['stay of Enforcement of Judgments' 'amendment of Statement of Claim' 'abuse of Process' 'legal Assignment of Judgment Debt' 'equitable Interest in Choses in Action']
['civil Procedure' 'equity' 'trusts' 'judgment Enforcement'] ['stay of Enforcement of Judgments' 'amendment of Statement of Claim' 'abuse of Process' 'legal Assignment of Judgment Debt' 'equitable Interest in Choses in Action']

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Procedural Posture

Civil Procedure Applications in Equity / Hearing of Application to Stay Enforcement of Judgments in the 2013 Proceedings and Application to File an Amended Statement of Claim in the 2019 Proceedings

Legal Issues

  1. 1 ['Whether enforcement of the judgments in favour of Pineview and Ms Huybers should be stayed because later settlements allegedly meant they had no outstanding liability to ANZ.' "Whether Pineview's alleged holding of the benefit of its judgment on trust for the Rubino interests prevented Pineview from enforcing the judgment against Wyse Accounting absent a legal assignment." 'Whether Wyse Accounting should be permitted to continue the 2019 proceedings by an amended statement of claim seeking declarations and consequential orders about rights between Pineview and the Rubino parties.']

Ratio Decidendi

The stay was refused because the judgments in favour of Pineview and Ms Huybers were independent of any continuing liability to ANZ and remained enforceable. Pineview remained the legal judgment creditor because there was no legal assignment of the judgment under s 12 of the Conveyancing Act 1919 (NSW), and any alleged equitable interest of the Rubino parties did not prevent legal enforcement against Wyse Accounting. The 2019 proceedings were dismissed because Wyse Accounting had no interest in the substantive equitable rights and obligations between Pineview and the Rubino parties, making continuation of those proceedings an abuse of process.

Court Disposition

Stay application dismissed and 2019 proceedings dismissed.

Orders

  • ['In proceedings 2013/301976, the motion be dismissed.' "In proceedings 2013/301976, Wyse Accounting pay the respondents' costs of the motion." 'In proceedings 2019/173683, the proceedings be dismissed.' "In proceedings 2019/173683, Wyse Accounting pay the defendants' costs of the proceedings."]