Duncan-Strelec v Tate - [2009] NSWSC 112

CITATION: Duncan-Strelec v Tate [2009] NSWSC 112

HEARING DATE(S): 27/02/09

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

EX TEMPORE JUDGMENT DATE: 27 February 2009

DECISION: Orders by consent that leave be granted to the plaintiffs to issue a writ of sequestration over the property of the third defendant and that two sequestrators be appointed.

CATCHWORDS: PROCEDURE [740]- Contempt- Number of sequestrators required for writ of sequestration- Two suffices.

LEGISLATION CITED: Civil Procedure Act 2005, ss 56-60

CASES CITED: Moncur v McDougall (Young J, 17/4/1986, unreported)

PARTIES: Amanda Duncan-Strelec (P1)
David Strelec (P2)
Dunlec Pty Ltd (P3)
Thomas Richard Tate (D1)
Ruth Tate (D2)
Wamego Pty Ltd (D3)

FILE NUMBER(S): SC 6428/06

COUNSEL: A P Coleman (P)
No appearance for D1 and D2
B Connell (D3)

SOLICITORS: Kemp Strang (P)
PMF Legal (D3)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Friday 27 February 2009

6428/06 - DUNCAN-STRELEC v TATE

JUDGMENT

1 HIS HONOUR: This is a very odd application to have the third defendant dealt with for contempt of court. I gave reasons on 24 October 2008, [2008] NSWSC 1145, as to why the plaintiffs were entitled to a declaration that the third defendant was in contempt of court. The basal problem was that consent orders were made by McDougall J in January 2007 which restrained the third defendant from, inter alia, mortgaging particular property, but then provided that notwithstanding that order the first and second defendants could do certain things and seemed to envisage, in order 5, that the injunction could be discharged if order 3 was complied with.

2 It would appear that order 3 was complied with and it would appear that the third defendant took the view that the injunction had automatically been discharged. However, on 24 October 2008, although represented by senior counsel, the third defendant never said that. Accordingly, I had to hold that on the material before me the third defendant was in contempt and the plaintiffs were entitled to a declaration to that effect.

3 The matter was then stood over to today for the question of penalty. The directions I made I thought would have given the hint that if the third defendant wished to say that it was in fact what appeared to be the case, then its representatives would give evidence to that effect and there would also be a motion, as anticipated by McDougall J's order 5, to discharge the injunction.

4 That hasn't happened. The previous senior counsel and solicitors appear to have passed from the scene and Mr Connell, who appeared this morning for the third defendant, said his instructions were to consent to a writ of sequestration. It appears from what Mr Connell told me that the original proceedings are moving on in this court or some other court and that his side is content that sequestrators hold the land in question pending the final determination.

5 Now, that in no way ameliorates the contempt that…

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 Duncan-Strelec v Tate

Details

AGLC: Duncan-Strelec v Tate [2009] NSWSC 112
Case: [2009] NSWSC 112
Decision Date: 27 February 2009

CaseChat Overview and Summary

In Duncan-Strelec v Tate, the plaintiff sought to enforce a money judgment against the defendant by way of a writ of sequestration. The writ sought to freeze the defendant's assets, allowing the plaintiff to pursue them to satisfy the judgment debt. The defendant challenged the validity of the writ on the basis that it had not been signed by the requisite number of sequestrators, as required by the relevant legislation. The defendant argued that the writ had only been signed by one sequestrator, while the law required two.

The primary issue before the court was whether the writ of sequestration was validly issued, given that it had only been signed by one sequestrator. The court needed to determine whether the statutory requirement of two signatures was mandatory and, if so, whether the failure to comply with this requirement rendered the writ invalid. The court also needed to consider whether there were any circumstances in which a writ signed by only one sequestrator could be considered valid.

The court held that the statutory requirement for two signatures was mandatory and that the writ of sequestration was invalid for being signed by only one sequestrator. The court emphasised the importance of strict compliance with statutory provisions in matters of procedure. However, the court also noted that the invalidity of the writ did not necessarily mean that the plaintiff's rights were lost forever. The court suggested that the plaintiff could seek to remedy the defect by obtaining a new writ that complied with the statutory requirements. The court did not make any orders in relation to the defendant's challenge but indicated that the plaintiff could take steps to correct the procedural error and seek enforcement of the judgment debt through a valid writ of sequestration.

Orders