Downie v Australia and New Zealand Banking Group Ltd

This matter concerned an application by a judgment creditor, Australia and New Zealand Banking Group Ltd, seeking relief in connection with a garnishee order made by the District Court against a solicitor, S & Co, who acted for the judgment debtor, Mr Malcolm Downie. The judgment creditor sought to attach a debt of $100,000, represented by a cheque drawn by the judgment creditor's lawyers in favour of S & Co, which was due and accruing to Mr Downie at the time the garnishee order was served. The proceedings were heard in the Federal Court by Lloyd-Jones J.

The primary legal issue before the Court was whether the garnishee order, served concurrently with the return of a cheque, validly attached the debt owed by the solicitor to the judgment debtor. This involved an interpretation of the operation of garnishee orders under the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedures Rules (NSW), particularly the meaning of "attach" in the context of satisfying a judgment. The Court also considered whether the absence of the judgment debtor as a party to the proceedings precluded the granting of relief.

The Court reasoned that the Civil Procedure Act 2005 (NSW), which governs the matter, reflects the principles of the Federal Court Rules. Section 117 of the Act states that a garnishee order operates to attach all debts due or accruing from the garnishee to the judgment debtor at the time of service of the order. Applying the analysis from *Coshott*, the Court found that the garnishee order was a valid notice and was effectively served with the cheque at the same time. The Court adopted the understanding that "attachment" under a garnishee order is a form of execution aimed at securing a sum of money to satisfy a judgment, distinct from the seizure of property under a writ of fieri facias. The Court also determined that the judgment debtor's absence did not prevent the hearing or the granting of relief, as he had been given ample notice of the proceedings.

The Court ordered that the garnishee order was valid and that the cheque was attached to the extent of the amount outstanding under the judgment.