D A Shannon v G A Shannon; D & W Shannon Pty Ltd v G A Shannon [No 2] [2013] NSWSC 1222

D A Shannon v G A Shannon; D & W Shannon Pty Ltd v G A Shannon [No 2] [2013] NSWSC 1222

The allegations relied on by the CBA were at least arguable. To the extent the motions relied on fraud, binding authority required that aspect to be pursued by separate proceedings. To the extent the motions raised non-fraud grounds, including abuse of process and failure of disclosure, they could proceed by motion and should not be summarily dismissed. The balance of convenience required that the CBA not be disadvantaged, and D & W Shannon or Dallas Shannon not be advantaged, by the impugned judgments pending resolution of the issues.

Jurisdiction
Australia
Judgment Date
02 September 2013
Procedural Posture
Interlocutory Applications / Motions by the Commonwealth Bank of Australia to Set Aside Judgments of Davies J in Two Proceedings
Outcome
Separate proceedings were directed to be commenced; entry of the judgments was set aside; execution or enforcement was stayed; the motions were stood over to be heard with the separate proceedings.
Legal Topics
['motion to Set Aside Judgment' 'fraud' 'abuse of Process' 'separate Proceedings Where Fraud Alleged' 'stay of Entry and Enforcement of Judgment']
['practice and Procedure' 'civil Procedure' 'insolvency'] ['motion to Set Aside Judgment' 'fraud' 'abuse of Process' 'separate Proceedings Where Fraud Alleged' 'stay of Entry and Enforcement of Judgment']

Case Brief

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Procedural Posture

Interlocutory Applications / Motions by the Commonwealth Bank of Australia to Set Aside Judgments of Davies J in Two Proceedings

Legal Issues

  1. 1 ['Whether judgments of Davies J should be set aside on grounds including abuse of process, failure of disclosure and fraud.' 'Whether allegations amounting to fraud must be pursued by separate proceedings rather than by motion and affidavit.' 'Whether entry and execution or enforcement of the judgments should be stayed pending determination of the motion and separate proceedings.']

Ratio Decidendi

The allegations relied on by the CBA were at least arguable. To the extent the motions relied on fraud, binding authority required that aspect to be pursued by separate proceedings. To the extent the motions raised non-fraud grounds, including abuse of process and failure of disclosure, they could proceed by motion and should not be summarily dismissed. The balance of convenience required that the CBA not be disadvantaged, and D & W Shannon or Dallas Shannon not be advantaged, by the impugned judgments pending resolution of the issues.

Court Disposition

Separate proceedings were directed to be commenced; entry of the judgments was set aside; execution or enforcement was stayed; the motions were stood over to be heard with the separate proceedings.

Orders

  • ['Separate proceedings be commenced by the applicant on the motion seeking to set aside the judgment of Davies J.' 'The entry of that judgment be set aside.' 'The execution or enforcement of the judgment of Davies J be stayed pending the outcome of the motion and the separate proceedings.' 'The motions be stood over...