Cornock v Foster - [2006] NSWSC 71

CITATION: Cornock v Foster [2006] NSWSC 71

HEARING DATE(S): 3 February 2006

JURISDICTION: EQUITY

JUDGMENT OF: Rein AJ

EX TEMPORE JUDGMENT DATE: 02/06/2006

DECISION: Refer to [26].

CATCHWORDS: Mareva orders - principles - plaintiff a solicitor seeking unpaid professional costs and disbursements in relation to Family Court proceedings - interim costs order made by Costs Assessment Registrar in Family Court - plaintiff asserts agreement as to payment out of property partly owned by defendant - further evidence required as to current position of sale of the property and third parties involved

LEGISLATION CITED: Supreme Court Act, s 23

CASES CITED: Ausbro Forex Pty Ltd v Mare (1986) 4 NSWLR 419
Cardile v LED Builders Pty Limited (1999) 198 CLR 380
Derby & Co Ltd v Weldon (Nos 3 and 4) [1900] 1 Ch 65
Frigo v Culhaci [1998] NSWCA 393
Jackson v Richards [2005] NSWSC 630
Jackson v Sterling Industries (1987) 162 CLR 612
Johns v Cassel (1993) FLC 92-364
Maritime Union of Australia (No 3) (1998) 195 CLR 1
Ninemia Maritime Corp v Trave GmbH & Co KG (The Niedersachsen) [1984] 1 All ER 398
Patrick Stevedores Operations No 2 Pty Limited v
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Pelechowski v Registrar, Court of Appeal (1998) 198 CLR 435
Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264
The Irina Zharkikh [2001] 2 NZLR 801; [2001] 2 Lloyd Rep 319

PARTIES: Peter Berkeley Cornock (Plaintiff)
Graeme Charles Foster (Defendant)

FILE NUMBER(S): SC 1245/06

COUNSEL: Mr D M Roberts (Plaintiff)
No appearance (Defendant)

SOLICITORS: Peter Berkeley Cornock (Plaintiff)
No appearance (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

REIN AJ

6 February 2006

1245/06 PETER BERKELEY CORNOCK v GRAEME CHARLES FOSTER

JUDGMENT

1 HIS HONOUR: The plaintiff in this matter is a solicitor. He acted for the defendant in proceedings brought against the defendant by his then wife, Michele Robinson. The plaintiff today seeks, in effect, Mareva orders against the defendant.

2 The plaintiff asserts that the defendant agreed to pay the plaintiff’s costs and disbursements in accordance with family law proceedings and to do so out of the proceeds of sale of a property owned by the defendant and his wife at 46 Cheryl Crescent, Newport (which I shall refer to as “the Newport property”). The Newport property, it appears, was owned jointly by the defendant and Ms Robinson.

3 The plaintiff has delivered an itemised bill of costs to the defendant (see pp 41-83 of the exhibit to Mr Cornock’s affidavit of 3 February 2006 and para 23 of that affidavit). No objections have been filed by the defendant to the bill and Registrar Halbert in the Sydney Family Court ordered that a preliminary assessment of the plaintiff’s costs and disbursements proceed on a tax invoice of the plaintiff (see para 30 of the plaintiff’s affidavit of 3 February 2006). The amount claimed is $80,924.59.

4 From the affidavits filed it appears that whilst the plaintiff…

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 Cornock v Foster

Details

AGLC: Cornock v Foster [2006] NSWSC 71
Case: [2006] NSWSC 71
Decision Date: 02/06/2006

CaseChat Overview and Summary

The case of Cornock v Foster involved a dispute between a solicitor, Cornock, and a client, Foster, regarding unpaid professional costs and disbursements arising from Family Court proceedings. Cornock sought an interim injunction under the Mareva principles to prevent Foster from disposing of property that was partly owned by Foster, in order to secure the unpaid costs. The court was asked to determine whether the Mareva injunction should be granted and if there was sufficient evidence to warrant a stay on the sale of the property.

The legal issues before the court centred on the application of the Mareva injunction, which is used to prevent a defendant from disposing of assets outside the jurisdiction to satisfy a potential judgment. Cornock argued that there was an agreement to pay the outstanding costs out of the sale of the property and that Foster had not complied with this arrangement. The court had to assess whether there was a real prospect of success in Cornock's claim and whether the balance of convenience favoured granting the injunction. Additionally, the court needed to determine if there was sufficient evidence to warrant a stay on the sale of the property, and if it was necessary to hear from third parties involved in the sale.

The court concluded that Cornock had not provided enough evidence to support the granting of a Mareva injunction. The judge found that while Cornock had established a prima facie case, there was insufficient information to determine the current position of the sale of the property and the involvement of third parties. The court emphasised the need for further evidence before such an injunction could be granted. Consequently, the application for the injunction was dismissed, and the court ordered that Cornock provide additional evidence to support the claim.

The final orders of the court included the dismissal of the Mareva injunction application and an order for Cornock to provide further evidence regarding the sale of the property and the involvement of third parties. This decision highlights the importance of thorough documentation and evidence when seeking interim relief, particularly in complex property disputes.

Orders