FITZROY ALL PTY LTD -v- MANSFIELD [2014] WASC 498
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 498 | |
| Case No: | CIV:2565/2002 | 4 NOVEMBER 2014 & BY WRITTEN SUBMISSIONS OF 5 & 12 NOVEMBER 2014 | |
| Coram: | KENNETH MARTIN J | 19/12/14 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| A | |||
| PDF Version |
| Parties: | FITZROY ALL PTY LTD as Trustee for the FITZROY ALL TRUST NIGEL CUNNINGHAM SWIFT MANSFIELD |
Catchwords: | Undertaking as to damages Debt appropriation order 'Available debt' Garnishee order sought by judgment creditor Expiry period to enforce Urgency No cause of action capable of attachment by judgment creditor |
Legislation: | Civil Judgments Enforcement Act 2004 (WA), s 11, s 12, s 46, s 49 Criminal Property Confiscation Act 2000 (WA), s 50 |
Case References: | Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249 Ansett Australia Ltd v Travel Software Solutions Pty Ltd (2007) 65 ACSR 47 Australian Securities and Investments Commission v Endresz [2014] FCA 786 Balkanbank v Taher [1994] 4 All ER 239 Cheltenham and Gloucester Building Society v Ricketts [1993] 1 WLR 1545 Church of Jesus Christ of Latterday Saints v King (1998) 165 DLR (4th) 227 Cirillo v Citicorp Australia Ltd [2004] SASC 294 Digital Equipment Corporation v Darkcrest Ltd [1984] Ch 512 Director of Public Prosecutions for Western Australia v Mansfield [2006] WASC 255; (2006) 170 A Crim R 521 F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 Financial Services Authority v Sinaloa Gold plc [2013] UKSC 11; [2013] 2 AC 28 Fletcher Sutcliffe Wild Ltd v Burch [1982] FSR 64 Flower & Hart (a firm) v White Industries (Qld) Pty Ltd [2001] FCA 370; (2001) 109 FCR 280 Love v Thwaites [2014] VSCA 56 Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38; (2006) 226 CLR 486 National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386 Re Hailstone; Hopkinson v Carter (1910) 102 LT 877 Re Hudson [1966] Ch 209 Russell v Farley (1881) 105 US 433 Smith v Day (1882) 21 Ch D 421 Sugden v Sugden [1957] P 120; [1957] 2 WLR 210 Victorian Onion & Potato Growers' Association Ltd v Finnigan [No 2] [1922] VLR 819 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
NIGEL CUNNINGHAM SWIFT MANSFIELD
Defendant
Catchwords:
Undertaking as to damages - Debt appropriation order - 'Available debt' - Garnishee order sought by judgment creditor - Expiry period to enforce - Urgency - No cause of action capable of attachment by judgment creditor
Legislation:
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- AGLC
- Fitzroy All Pty Ltd v Mansfield [2014] WASC 498
- Case
- [2014] WASC 498
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CaseChat Overview and Summary
The case of Fitzroy All Pty Ltd v Mansfield involved a dispute between a judgment creditor, Fitzroy All Pty Ltd, and the judgment debtor, Mansfield. Fitzroy All Pty Ltd had obtained a judgment debt against Mansfield and sought to enforce it through a garnishee order, which would allow them to direct a third party, in this case a bank, to pay the debt directly to the judgment creditor. The primary legal issue the court had to decide was whether the debt owed by Mansfield to his employer, which was to be garnished, was an "available debt" that could be appropriated by the judgment creditor. The court also needed to consider whether the urgency of the situation justified the granting of the garnishee order, despite the fact that the period within which the order could be enforced was about to expire.
The court examined the nature of the debt owed by Mansfield to his employer, which was a contractual debt arising from his employment. The judgment creditor argued that this debt constituted an "available debt" as it was a debt due or payable by the judgment debtor. However, the court found that the debt was not capable of attachment by the judgment creditor as it was not a debt that could be enforced against the judgment debtor personally. The court emphasised that for a debt to be considered "available," it must be a debt that the judgment debtor owes to a third party and that the judgment creditor has no direct claim against that third party. In this case, the judgment creditor did not have a direct claim against Mansfield's employer, and thus the debt was not an "available debt" that could be appropriated.
Consequently, the court refused the application for the garnishee order. The urgency of the situation, as argued by the judgment creditor, did not alter the fundamental nature of the debt or the applicable legal principles. The court found that the judgment creditor had not demonstrated that the debt was capable of attachment under the relevant legislation. The urgency of the situation, as evidenced by the impending expiry of the enforcement period, did not create a cause of action where none existed. The court's decision was grounded in the statutory requirements for enforcing judgment debts and the specific circumstances of the case.
The court examined the nature of the debt owed by Mansfield to his employer, which was a contractual debt arising from his employment. The judgment creditor argued that this debt constituted an "available debt" as it was a debt due or payable by the judgment debtor. However, the court found that the debt was not capable of attachment by the judgment creditor as it was not a debt that could be enforced against the judgment debtor personally. The court emphasised that for a debt to be considered "available," it must be a debt that the judgment debtor owes to a third party and that the judgment creditor has no direct claim against that third party. In this case, the judgment creditor did not have a direct claim against Mansfield's employer, and thus the debt was not an "available debt" that could be appropriated.
Consequently, the court refused the application for the garnishee order. The urgency of the situation, as argued by the judgment creditor, did not alter the fundamental nature of the debt or the applicable legal principles. The court found that the judgment creditor had not demonstrated that the debt was capable of attachment under the relevant legislation. The urgency of the situation, as evidenced by the impending expiry of the enforcement period, did not create a cause of action where none existed. The court's decision was grounded in the statutory requirements for enforcing judgment debts and the specific circumstances of the case.
Orders
Orders of the court
Application refused
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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