McLeary v Swift [2013] NSWSC 1674

McLeary v Swift [2013] NSWSC 1674

The plaintiff and Teffcog Pty Limited were not judgment creditors in respect of order 1 because the order required payment to the Deputy Commissioner of Taxation, and on its proper construction was in favour of the Deputy Commissioner. The enforcement provisions relied on did not permit the plaintiff or Teffcog to enforce the judgment debt by garnishee order, writ of execution or charging order. There was no clerical mistake, accidental slip or omission, and no basis under UCPR r 36.16 or the inherent jurisdiction to vary the final orders to substitute monetary judgment while the specific performance order stood, especially where a cross-appeal was on foot. Section 135 of the Civil...

Jurisdiction
Australia
Judgment Date
14 November 2013
Procedural Posture
Notice of Motion Concerning Enforcement and Variation of Orders / Consequential Orders; Determination of Statement of Issues and Notice of Motion for Garnishee Order
Outcome
Notice of Motion dismissed with costs. Questions in Statement of Issues answered "no".
Legal Topics
['enforcement of Orders' 'garnishee Order' 'writ of Execution' 'charging Order' 'judgment Creditor' 'variation of Orders' 'slip Rule' 'specific Performance' 'non Party Enforcement']
['judgments and Orders' 'civil Procedure' 'equity'] ['enforcement of Orders' 'garnishee Order' 'writ of Execution' 'charging Order' 'judgment Creditor' 'variation of Orders' 'slip Rule' 'specific Performance' 'non Party Enforcement']

Case Brief

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Procedural Posture

Notice of Motion Concerning Enforcement and Variation of Orders / Consequential Orders; Determination of Statement of Issues and Notice of Motion for Garnishee Order

Legal Issues

  1. 1 ['Whether the orders made on 26 November 2012 were enforceable by the plaintiff or Teffcog Pty Limited pursuant to s 106(1) of the Civil Procedure Act 2005 and rr 38.1, 39.2, 39.34 and 39.44 of the Uniform Civil Procedure Rules 2005.' 'Whether, by reason of the terms of the orders made on 26 November 2012, including order 4, and/or UCPR r 39.49, either or both of the plaintiff and Teffcog Pty Limited were judgment creditors of the defendant in respect of the amounts payable under order 1 and interest under s 101 of the Civil Procedure Act 2005.' 'Whether the orders made on 26 November 2012 should be varied so as to enable the plaintiff and/or Teffcog Pty Limited to enforce order 1 and constitute either or both of them a judgment creditor.' 'Whether the Court should give directions or make orders pursuant to s 135 of the Civil Procedure Act 2005.']

Ratio Decidendi

The plaintiff and Teffcog Pty Limited were not judgment creditors in respect of order 1 because the order required payment to the Deputy Commissioner of Taxation, and on its proper construction was in favour of the Deputy Commissioner. The enforcement provisions relied on did not permit the plaintiff or Teffcog to enforce the judgment debt by garnishee order, writ of execution or charging order. There was no clerical mistake, accidental slip or omission, and no basis under UCPR r 36.16 or the inherent jurisdiction to vary the final orders to substitute monetary judgment while the specific performance order stood, especially where a cross-appeal was on foot. Section 135 of the Civil...

Court Disposition

Notice of Motion dismissed with costs. Questions in Statement of Issues answered "no".

Orders

  • ['Answer each of the questions in the Statement of Issues filed on 16 October 2013 - No.' 'Order the plaintiff pay the costs of the defendant of the hearing of those issues.' 'Order the Notice of Motion filed on 20 June 2013 be dismissed with costs.']