Fitzroy All Pty Ltd v Mansfield

Case [2014] WASC 498


FITZROY ALL PTY LTD -v- MANSFIELD [2014] WASC 498



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2014] WASC 498
Case No:CIV:2565/20024 NOVEMBER 2014 & BY WRITTEN SUBMISSIONS OF 5 & 12 NOVEMBER 2014
Coram:KENNETH MARTIN J19/12/14
26Judgment 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
CITATION : FITZROY ALL PTY LTD -v- MANSFIELD [2014] WASC 498 CORAM : KENNETH MARTIN J HEARD : 4 NOVEMBER 2014 & BY WRITTEN SUBMISSIONS OF 5 & 12 NOVEMBER 2014 DELIVERED : 19 DECEMBER 2014 FILE NO/S : CIV 2565 of 2002 BETWEEN : FITZROY ALL PTY LTD as Trustee for the FITZROY ALL TRUST
    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:

Civil Judgments Enforcement Act

Continue reading Fitzroy All Pty Ltd v Mansfield

Sign in free to access the full text

Details
AGLC
Fitzroy All Pty Ltd v Mansfield [2014] WASC 498
Case
[2014] WASC 498
Decision Date

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.

Orders

Orders of the court

Application refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.