Aughey v Poynter - [2013] NSWSC 1052

Supreme Court

New South Wales

Medium Neutral Citation: Aughey v Poynter [2013] NSWSC 1052
Hearing dates: 31 July 2013
Decision date: 31 July 2013
Jurisdiction: Equity Division - Duty List
Before: White J
Decision:
Refer to paras [43] and [49] of judgment.

Catchwords: INJUNCTIONS - interlocutory injunctions - freezing orders - application for freezing order in aid of execution of Local Court judgment - jurisdiction of Supreme Court to make freezing order pursuant to inherent jurisdiction and r 25.14 of Uniform Civil Procedure Rules 2005 - whether making order is in the interests of the administration of justice when Local Court has same inherent power
PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - proceedings with no real prospects of success - improper allegations of fraud
Legislation Cited: Supreme Court Act 1970
Cases Cited: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435
Tagget v Sexton [2009] NSWCA 91; (2009) 255 ALR 522
Mahaffy v Mahaffy [2013] NSWSC 245
Finn v Carelli [2007] NSWSC 261
Degmam Pty Ltd v Wright (No 2) [1983] 2 NSWLR 354
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Category: Principal judgment
Parties: Phillip Aughey (Plaintiff)
Jonathan Poynter (Defendant)
Representation: Counsel:
M A Griffin, solicitor (Plaintiff)
R Withana (Defendant)
Solicitors:
Morgan Ardino & Co (Plaintiff)
Curtis Legal (Defendant)

File Number(s): 2013/212737

Judgment

HIS HONOUR: This is an application for a freezing order in aid of execution of a judgment given in the Local Court at Tamworth on 13 June 2013. The plaintiff also seeks an order for discovery of assets.

It appears from the reasons of judgment given in the Local Court (proceedings 2012/00155081) that in that Court, the plaintiff claimed the sum of $23,873 said to be owing by the first defendant or, alternatively, a company called The Australian Touring Theatre Company Pty Ltd, in respect of the presentation of a play for which the plaintiff claimed he had the copyright. He claimed the defendant promised to make payments when the play was presented by the defendant. The plaintiff also claimed money for services he performed as an actor.

The learned Magistrate found that the plaintiff was entitled to a sum of $8,007 consisting of royalties, a spotter's fee, a balance due for acting fees and other moneys payable for acting fees, a meal allowance and repayment of unpaid expenses.

The orders entered in the proceedings were:

"1. Verdict for the Plaintiff against the First Defendant in the sum of $8007.00.

2. The First Defendant is to pay interest on $1000.00 due as an advance against royalties from 17 May 2011 (less credit in respect of interest on any amount in fact paid on account of royalties).

3. Interest on judgment debt.

4. Costs reserved."

The application for a freezing order made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aughey v Poynter

Details

AGLC: Aughey v Poynter [2013] NSWSC 1052
Case: [2013] NSWSC 1052
Decision Date: 31 July 2013

CaseChat Overview and Summary

In the case of Aughey v Poynter, the plaintiff sought an interlocutory injunction in the form of a freezing order to aid the execution of a judgment obtained from the Local Court. The defendant, in response, contested the application on several grounds, including the Supreme Court's jurisdiction to grant such an order. The primary dispute centred around whether the Supreme Court had the authority to issue a freezing order under its inherent jurisdiction and rule 25.14 of the Uniform Civil Procedure Rules 2005, particularly when the Local Court possessed the same inherent power. Additionally, the court needed to determine whether the issuance of the order would be in the interests of the administration of justice.

The court examined the jurisdictional aspects and the principles of comity and convenience in the context of the inherent powers of the courts. It acknowledged the Local Court's ability to grant a freezing order but considered whether exceptional circumstances warranted the Supreme Court's intervention. The court also assessed the merits of the plaintiff's allegations and the potential impact of the order on the interests of justice. In determining the appropriate costs order, the court focused on the conduct of the defendant, who had made improper allegations of fraud in the proceedings.

Upon considering these factors, the court concluded that the Supreme Court had the inherent jurisdiction to issue a freezing order but determined that it was not in the interests of justice to do so in this instance. The court also found that the defendant's allegations of fraud were improper and that the proceedings had no real prospects of success. Consequently, the court ordered costs on an indemnity basis against the defendant for their conduct during the proceedings. This decision underscores the importance of jurisdictional boundaries and the appropriate use of interlocutory injunctions in civil litigation.

Orders