Page v McKensey & Ors [2009] NSWCA 127

Page v McKensey & Ors [2009] NSWCA 127

The Separation Agreement, construed as a whole and in light of the parties' treatment of the judgment debt and costs orders as assets of Forsythes Old, manifested an intention that the continuing partners retain all partnership assets except those specifically allocated to the retiring partners. Although the judgment and costs orders had not crystallised when the agreement was made, the inchoate rights were capable of equitable assignment for consideration and became assigned when they came into existence. The later Deed of Indemnity and Release therefore did not defeat the rights of McKensey, Lewis and Hicks, and no discretionary or procedural ground advanced by Page justified refusing...

Jurisdiction
Australia
Judgment Date
04 June 2009
Procedural Posture
Appeal / Appeal From Decisions of Windeyer J of 22 and 28 February and 4 March 2008, With a Notice of Motion in Court of Appeal Proceedings CA 40034/94 Filed on 5 March 2009
Outcome
Appeal dismissed with costs; Court of Appeal Notice of Motion granted in favour of the first, second and third respondents.
Legal Topics
['equitable Assignment' 'assignments of Inchoate Rights' 'enforcement of Judgments and Costs Orders' 'leave to Issue Writ of Execution' 'interest on Costs Orders' 'discretionary Refusal of Relief' 'bankruptcy and Joint Rights']
['equity' 'civil Procedure' 'partnership'] ['equitable Assignment' 'assignments of Inchoate Rights' 'enforcement of Judgments and Costs Orders' 'leave to Issue Writ of Execution' 'interest on Costs Orders' 'discretionary Refusal of Relief' 'bankruptcy and Joint Rights']

Case Brief

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Procedural Posture

Appeal / Appeal From Decisions of Windeyer J of 22 and 28 February and 4 March 2008, With a Notice of Motion in Court of Appeal Proceedings CA 40034/94 Filed on 5 March 2009

Legal Issues

  1. 1 ['Whether the Separation Agreement effected an equitable assignment by Nelson and Hewitt to McKensey, Lewis and Hicks of inchoate rights in a judgment debt and costs orders against Page.' 'Whether the Deed of Indemnity and Release executed by Nelson and Hewitt released Page from liability under the judgment debt and costs orders.' 'Whether alleged disentitling conduct by McKensey, Lewis and Hicks required refusal of leave to enforce the judgment and costs orders.' 'Whether interest should be payable on costs orders from 27 April 1996.' 'Whether leave should be granted to enforce the Court of Appeal costs orders made on 28 February 1995 and 29 January 1996.']

Ratio Decidendi

The Separation Agreement, construed as a whole and in light of the parties' treatment of the judgment debt and costs orders as assets of Forsythes Old, manifested an intention that the continuing partners retain all partnership assets except those specifically allocated to the retiring partners. Although the judgment and costs orders had not crystallised when the agreement was made, the inchoate rights were capable of equitable assignment for consideration and became assigned when they came into existence. The later Deed of Indemnity and Release therefore did not defeat the rights of McKensey, Lewis and Hicks, and no discretionary or procedural ground advanced by Page justified refusing...

Court Disposition

Appeal dismissed with costs; Court of Appeal Notice of Motion granted in favour of the first, second and third respondents.

Orders

  • ['That the appeal be dismissed with costs.' 'That the amount of the judgment debt and interest paid into Court as a condition of the grant of a stay pending this appeal be paid out to the first, second and third respondents.' 'In proceedings CA 40034/94, pursuant to Notice of Motion filed on 5 March 2009, grant...