Barclay Mowlem Construction v Tesrol Walsh Bay; Tesrol Walsh Bay v Barclay Mowlem Construction [2005] NSWSC 944

Barclay Mowlem Construction v Tesrol Walsh Bay; Tesrol Walsh Bay v Barclay Mowlem Construction [2005] NSWSC 944

The subpoena was validly issued because there was an extant examination application that constituted a proceeding and no basis was shown to conclude the subpoena lacked a legitimate forensic purpose. The costs of the examination summons, garnishment notice, subpoena, and stay motion were occasioned by Tesrol Walsh Bay's failure to pay the judgment debt and were legitimate and successful enforcement steps, so Tesrol Walsh Bay should pay them. The security for costs application was different and its costs should be Barclay Mowlem's costs in the proceedings.

Jurisdiction
Australia
Judgment Date
16 September 2005
Procedural Posture
Application for Costs of Two Interlocutory Proceedings / Ex Tempore Judgment
Outcome
Costs orders made.
Legal Topics
['subpoenas in Aid of Enforcement of Judgment' 'costs Occasioned by Failure to Comply With Judgment or Order' 'costs of Motion Which Settles' 'security for Costs' 'stay of Proceedings']
['civil Procedure' 'building and Construction' 'costs'] ['subpoenas in Aid of Enforcement of Judgment' 'costs Occasioned by Failure to Comply With Judgment or Order' 'costs of Motion Which Settles' 'security for Costs' 'stay of Proceedings']

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Procedural Posture

Application for Costs of Two Interlocutory Proceedings / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the Court had power to issue a subpoena to the Commonwealth Bank in aid of enforcement of Barclay Mowlem's judgment against Tesrol Walsh Bay." 'Whether Tesrol Walsh Bay should pay the costs of the examination summons, garnishment notice, subpoena, and motion insofar as it sought a stay.' 'How costs should be dealt with for a notice of motion that did not proceed because the judgment debt was agreed to be paid.' 'Whether the costs of the security for costs application should be paid by Tesrol Walsh Bay immediately or be costs in the proceedings.']

Ratio Decidendi

The subpoena was validly issued because there was an extant examination application that constituted a proceeding and no basis was shown to conclude the subpoena lacked a legitimate forensic purpose. The costs of the examination summons, garnishment notice, subpoena, and stay motion were occasioned by Tesrol Walsh Bay's failure to pay the judgment debt and were legitimate and successful enforcement steps, so Tesrol Walsh Bay should pay them. The security for costs application was different and its costs should be Barclay Mowlem's costs in the proceedings.

Court Disposition

Costs orders made.

Orders

  • ['Orders made in accordance with short minutes of order initialled and dated 16 September 2005.' 'Tesrol Walsh Bay Pty Limited to pay the costs of the examination summons, garnishment notice, subpoena, and the motion insofar as it sought a stay.' "The costs of the security for costs application are to be Barclay...