Patterson v Cohen [2006] NSWSC 424

Patterson v Cohen [2006] NSWSC 424

It is inappropriate to grant a charging order over the funds in court because the judgment was entered for more than was owed due to failure to credit $320 previously paid, and because the application for a charging order was altered at a late stage and brought in respect of different costs from those previously addressed. Further, the alternative request for injunctive relief was refused because the opportunity to seek mareva relief had passed and had previously been limited by the original order.

Parties
Plaintiff: Darcy Reginald Francis Patterson; First Defendant: Yehuda Leon Cohen; Second Defendant: Sir Moses Montefiore Jewish Home; Third Defendant: Minter Ellison Lawyers
Jurisdiction
Australia
Judgment Date
28 April 2006
Procedural Posture
Notice of Motion / Ex Tempore Judgment on Amended Notice of Motion
Outcome
Amended notice of motion dismissed with costs.
Legal Topics
Charging Orders, Moneys in Court, Costs Assessment, Injunctions
Civil Procedure Equity Charging Orders Moneys in Court Costs Assessment Injunctions

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Parties

Darcy Reginald Francis Patterson

Plaintiff

Yehuda Leon Cohen

First Defendant

Sir Moses Montefiore Jewish Home

Second Defendant

Minter Ellison Lawyers

Third Defendant

Procedural Posture

Notice of Motion / Ex Tempore Judgment on Amended Notice of Motion

Legal Issues

  1. 1 Whether a charging order may be made over moneys in court to answer a judgment entered under a certificate of determination of costs in other proceedings
  2. 2 Whether the first defendant had an equitable interest in the fund for the purposes of Civil Procedure Act 2005, s 126(1)
  3. 3 Whether the supporting affidavit for the charging order met the requirements of Uniform Civil Procedure Rules 2005, r 39.45(2)(a)

Ratio Decidendi

It is inappropriate to grant a charging order over the funds in court because the judgment was entered for more than was owed due to failure to credit $320 previously paid, and because the application for a charging order was altered at a late stage and brought in respect of different costs from those previously addressed. Further, the alternative request for injunctive relief was refused because the opportunity to seek mareva relief had passed and had previously been limited by the original order.

Court Disposition

Amended notice of motion dismissed with costs.

Orders

  • Amended notice of motion dismissed.
  • Plaintiff to pay the first defendant's costs.