Coshott v Learoyd [2001] FCA 88

Coshott v Learoyd [2001] FCA 88

Mrs Coshott's application to set aside the garnishment orders was rejected because at the time of service of the garnishment notices a debt was due from Citibank to her in respect of the surplus from sale, she was properly a party to the appeal, and the mortgagee’s obligation to pay surplus constituted a debt for the purposes of garnishment.

Parties
Applicant/appellant: Robert Gilbert Coshott; Applicant/appellant: Ljiljana Coshott; First Respondent: Roderick Ian Learoyd; Second Respondent: Salween Pty Ltd; Third Respondent: Woollahra Municipal Council
Jurisdiction
Australia
Judgment Date
16 February 2001
Procedural Posture
Application to Set Aside Garnishment Orders / Post Judgment Enforcement Dispute
Outcome
application dismissed
Legal Topics
Garnishment Orders, Judgment Enforcement, Mortgagee's Duty on Surplus, Trust and Debt Distinction
Practice and Procedure Enforcement of Judgments Mortgage Law Garnishment Orders Judgment Enforcement Mortgagee's Duty on Surplus Trust and Debt Distinction

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Parties

Robert Gilbert Coshott

Applicant/appellant

Ljiljana Coshott

Applicant/appellant

Roderick Ian Learoyd

First Respondent

Salween Pty Ltd

Second Respondent

Woollahra Municipal Council

Third Respondent

Procedural Posture

Application to Set Aside Garnishment Orders / Post Judgment Enforcement Dispute

Legal Issues

  1. 1 Whether garnishment orders were validly made against Mrs Coshott
  2. 2 Whether there was a debt owing at time of service of garnishment orders
  3. 3 Whether Mrs Coshott was a party to the appeal dismissed by consent

Ratio Decidendi

Mrs Coshott's application to set aside the garnishment orders was rejected because at the time of service of the garnishment notices a debt was due from Citibank to her in respect of the surplus from sale, she was properly a party to the appeal, and the mortgagee’s obligation to pay surplus constituted a debt for the purposes of garnishment.

Court Disposition

application dismissed

Orders

  • District Registrar to pay Woollahra Municipal Council or its solicitors $120,000.00 (NG779 of 1997)
  • District Registrar to pay Woollahra Municipal Council or its solicitors $11,232.25 (N283 of 1999)