Banov v Ciric [2014] NSWDC 340

Banov v Ciric [2014] NSWDC 340

The Court declined to make the charging order because the Court of Appeal stay was an interlocutory order operating only pending the appeal and was spent once the appeal was dismissed; there was no continuing obligation to the plaintiff in respect of moneys from the defamation proceedings, the plaintiff's rights after the bankruptcies were limited to claims in bankruptcy, and the ex parte application sought orders impacting Mr Leamey without notice and went beyond any entitlement under the stay.

Jurisdiction
Australia
Judgment Date
28 January 2014
Procedural Posture
Civil Application for Charging Order in Post Judgment Enforcement / Ex Parte Notice of Motion Filed on 28 January 2014 After Dismissal of an Appeal and Bankruptcy of the Judgment Debtors
Outcome
Orders sought in the plaintiff's notice of motion refused.
Legal Topics
['charging Order' 'interlocutory Stay Pending Appeal' 'security for Judgment Debt' 'trust Funds Held by Solicitor' "creditor's Petition" "debtor's Petitions"]
['civil Procedure' 'enforcement of Judgments' 'bankruptcy and Insolvency'] ['charging Order' 'interlocutory Stay Pending Appeal' 'security for Judgment Debt' 'trust Funds Held by Solicitor' "creditor's Petition" "debtor's Petitions"]

Case Brief

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Procedural Posture

Civil Application for Charging Order in Post Judgment Enforcement / Ex Parte Notice of Motion Filed on 28 January 2014 After Dismissal of an Appeal and Bankruptcy of the Judgment Debtors

Legal Issues

  1. 1 ["Whether the plaintiff should be granted a charging order over trust funds held by the judgment debtors' solicitor." "Whether an interlocutory stay granted pending appeal continued to give the plaintiff an entitlement to moneys from the defendants' defamation proceedings after the appeal was dismissed." 'Whether it was appropriate to make an ex parte order impacting the solicitor holding the funds without notice to him.' "Whether the plaintiff's entitlement after the bankruptcies was limited to a claim in the bankruptcy."]

Ratio Decidendi

The Court declined to make the charging order because the Court of Appeal stay was an interlocutory order operating only pending the appeal and was spent once the appeal was dismissed; there was no continuing obligation to the plaintiff in respect of moneys from the defamation proceedings, the plaintiff's rights after the bankruptcies were limited to claims in bankruptcy, and the ex parte application sought orders impacting Mr Leamey without notice and went beyond any entitlement under the stay.

Court Disposition

Orders sought in the plaintiff's notice of motion refused.

Orders

  • ["I decline to make the orders sought in the plaintiff's notice of motion filed on 28 January 2014."]