Davidson v Global Investment International Limited
[1999] WASC 230
DAVIDSON -v- GLOBAL INVESTMENT INTERNATIONAL LIMITED & ANOR [1999] WASC 230
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 230 | |
| Case No: | FRJ:1/1995 | 16 AUGUST 1999 | |
| Coram: | MASTER BREDMEYER | 19/11/99 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| PDF Version |
| Parties: | MORRIS DAVIDSON GLOBAL INVESTMENT INTERNATIONAL LIMITED KEITH JOHN WOODMAN |
Catchwords: | Judgment creditor's entitlement to moneys paid into court order a garnishee order Opposed by another creditor |
Legislation: | Nil |
Case References: | Re Global Investments International Ltd, unreported; SCt of WA; Library No 950694; 12 December 1995 Barclays Bank Ltd v Piacun [1984] 2 Qd R 476 Iraqi Ministry of Defence v Arcepey Shipping Co SA [1981] 1 QB 65 Ninemia Maritime Corp v Trave Schiffartsgesellscheaft mbH & Co KG [1983] 1 WLR 1412 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant (Judgment Creditor)
AND
GLOBAL INVESTMENT INTERNATIONAL LIMITED
First Respondent (Judgment Debtor)
KEITH JOHN WOODMAN
Second Respondent
Catchwords:
Judgment creditor's entitlement to moneys paid into court order a garnishee order - Opposed by another creditor
Legislation:
Nil
Result:
Application allowed
(Page 2)
Representation:
Counsel:
Applicant (Judgment Creditor) : Mr A C McIntosh
First Respondent (Judgment Debtor) : Mr E W Nielsen
Second Respondent : Mr M E Paterson
Solicitors:
Applicant (Judgment Creditor) : Murie & Edward
First Respondent (Judgment Debtor) : Nielsen & Co
Second Respondent : Michael Paterson &
Associates
Case(s) referred to in judgment(s):
Re Global Investments International Ltd, unreported; SCt of WA; Library No 950694; 12 December 1995
Case(s) also cited:
Barclays Bank Ltd v Piacun [1984] 2 Qd R 476
Iraqi Ministry of Defence v Arcepey Shipping Co SA [1981] 1 QB 65
Ninemia Maritime Corp v Trave Schiffartsgesellscheaft mbH & Co KG [1983] 1 WLR 1412
(Page 3)
1 MASTER BREDMEYER: I have two applications before me. The first is by the judgment creditor (Davidson) that an order nisi made herein on 6 August 1999 against the garnishee be made absolute. Events have overtaken this application. The garnishee, the ANZ Bank, paid out the money it was holding on behalf of the judgment debtor, Global Investments International Ltd (Global), on the order nisi. But instead of paying the money to the judgment creditor, the bank paid the money into court. $23,350 was received by this Court on 16 August 1999. Apparently it is the bank's custom to pay into court money ordered to be paid by a court order. I consider I should amend this application to one for payment to the judgment creditor of the money held in court.
2 That application is opposed by Keith John Woodman (Woodman) the second respondent. The application is not opposed by Global.
3 Woodman has filed a chamber summons dated 12 August 1999 and seeks the following relief:
1. The applicant's garnishee order nisi be discharged.
2. This action be consolidated with Supreme Court Action COR 77 of 1995.
3. [Woodman] has leave to:
(a) proceed with his application to set aside the foreign judgment, the subject of these proceedings; and
(b) apply for an order requiring the applicant in this matter to indemnify the first respondent in this matter in respect of all costs and fees in respect of Supreme Court Action COR 77 of 1995 which have been paid to the third party in this matter.
(Page 4)
5 Woodman brought an action against Global in the District Court, No 4277 of 1994. On 27 February 1995 Woodman obtained a summary judgment against Global in that court in the sum of $69,234.23. That judgment was later set aside on appeal. The District Court case has not yet been tried.
6 On 4 December 1998 Woodman obtained a Marevainjunction against Global in that District Court action in these terms:
"IT IS ORDERED that:
1. Subject to the Provisional Liquidator receiving payment of his fees and disbursements properly incurred out of the fund in the ANZ Bank, the defendant be restrained until further of the court from disposing of the balance of funds remaining in the account after the said payments to the Provisional Liquidator;
2. The defendant shall have liberty to apply to dissolve or vary the order on two days' notice to the plaintiff, subject to the defendant providing to the court information as to other creditors of the defendant in Western Australia and as to funds available whether in Western Australia or elsewhere to meet the debts owed to the creditors in Western Australia and the judgment debt to Mr Morris Davidson and all the fees of the defendant's solicitors."
7 Global applied to the District Court to vary the Mareva injunction to allow the fees of Murie & Edward to be paid and Davidson applied for leave to intervene and to discharge the Mareva injunction. Those applications were adjourned by the District Court on 26 August 1999 pending my decision in this matter.
8 I cannot see why an order should not be made paying out the $23,350 to the judgment creditor. His foreign judgment has been registered in this Court since March 1995. It has not been set aside. Adequate time has elapsed for interested parties to have applied to set aside the judgment. I consider that it should take priority to the Mareva injunction granted by the District Court. The Mareva injunction is an interlocutory order obtained by Woodman to preserve the assets of Global in this jurisdiction and make them available for execution. He does not have a charge or lien upon the money.
(Page 5)
9 Woodman in his chamber summons at par 3(a) asks that he have leave to proceed with his application to set aside the foreign judgment the subject of these proceedings. Mr Paterson's written submissions at 3.2 state:
"The application to set aside the foreign judgment has not been disposed of completely in that it is not certain that the application to set aside the judgment was dismissed. Certainly no order to that effect has been extracted and until it is, the order is ineffective."
10 There was an application dated 3 May 1995 (document 12 on the court file) by Global to set aside the registration of the foreign judgment. It was brought by Mr Malcolm J Bateman who signed as solicitor for Global. The application was adjourned on various occasions and eventually was withdrawn before me on 4 December 1996. On that occasion, Mr Nielsen appeared for Global. (I note he filed a Notice of Change of Solicitors on the same day.) Mr McIntosh appeared for the applicant and Mr Paterson appeared for Woodman. No formal order was extracted. I repeat that the registration of this foreign judgment has stood since March 1995 and has not been set aside. There is no current application to have it set aside and I would not postpone making an order in this matter for the payment out of the money to give further time for Mr Woodman, or any other creditor, to apply to have the judgment set aside. More than adequate time has elapsed since March 1995.
11 A further objection to the order for payment out being sought is that the application was brought on for hearing without the requisite notice of one month being given to all parties as required by O 3 r 7. That rule only applies to applications pre-trial: see Seaman, "Civil Procedure Western Australia" 3.7.2.
12 Another objection to Davidson's application is that the application is said to be a sham because Global has other moneys which it can use to pay out Davidson. Hence it is said that the foreign judgment proceedings have only been kept on foot to enable Woodman to be thwarted in his attempts to recover moneys from Global in the District Court action. I have read the fourth affidavit of Mr McIntosh sworn on 16 August 1999 saying that moneys advanced to Global by its directors, Dhaliwal and Davidson, have properly been retired and that the company has no money to pay the debt to Davidson. I see no reason why Davidson should loan funds to the company to repay a debt owed by the company to him. The
(Page 6)
- execution of a judgment creditor cannot be confined to a particular asset. The choice of assets is his.
13 Woodman in his summons asks that this action be consolidated with Supreme Court action COR 77 of 1995 and asks for an order requiring the applicant in this matter (Davidson) to indemnify Global in this matter in respect of all costs and fees in respect of Supreme Court action COR 77 of 1995 which have been paid to the third party (Conlan in this matter). COR 77 of 1995 was an application by Davidson to wind-up Global. Woodman became the first intervener in that action and Mr Malcolm Bateman became the second intervener. I appointed a provisional liquidator but that appointment was set aside by Acting Master Chapman: Re Global Investments International Ltd, unreported; SCt of WA; Library No 950694; 12 December 1995 on the ground that this Court did not have jurisdiction to do so because Global was a foreign company registered in the British Virgin Islands. Whilst Mr Conlan was the provisional liquidator, various sums of money were expended in payment of his costs and I assume in payment of legal costs. I do not consider that this action should be consolidated with COR 77 of 1995. They are separate matters and both are essentially completed. If Woodman wishes to seek an indemnity for Global against Davidson in that action for having wrongly brought the application to appoint a provisional liquidator in this Court, then it should be brought in COR 77 of 1995.
14 I propose to order the payment out of court of the $23,350 to Davidson and I will hear the parties on costs.
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