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Galbally & O'Bryan v Easton

Galbally & O'Bryan v Easton

Case [2016] NSWSC 77 24 February 2016

Charging Order

Execution against property

Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Galbally & O’Bryan v Easton [2016] NSWSC 77
Hearing dates: 4 February 2016
Date of orders: 24 February 2016
Decision date: 24 February 2016
Jurisdiction: Equity
Before: Hallen J
Decision:
1. Direct the Plaintiff to deliver to my Associate within 14 days from the date of delivery of these reasons for judgment, Short Minutes of Order that reflect these reasons for judgment.
2. Stand over the proceedings for 21 days from the date of delivery of these reasons for judgment.
Catchwords:
PROCEDURE – Judgments and orders – Execution against property – Modes of execution – Charging order – Plaintiff obtained charging order under Civil Procedure Act 2005, s 106, against first Defendant’s shares in public companies – Plaintiff commences separate proceedings seeking relief under s 126 Civil Procedure Act for orders to take the benefit of the charge arising under a charging order, including an order for sale of the shares and appointment of registered liquidator to sell the shares – Entitlement of the Plaintiff as judgment creditor, in relation to the security interests charged by the order, to any relief to which the judgment creditor would have been entitled had the charge been made in the judgment creditor’s favour by the judgment debtor
COSTS – Whether the Plaintiff should obtain an order for all of its costs as against the first Defendant
Legislation Cited: Administration and Probate Act 1958 (Vic)
Civil Procedure Act 2005 (NSW)
Enforcement of Judgments Act 1991 (SA)
Judgments Act 1838 (UK)
Judicature Act 1873 (UK)
Magistrates' Court Act 1989 (Vic)
Service and Execution of Process Act 1992 (Cth) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Alesco Corporation Limited ACN 008 666 064 v Te Maari [2015] NSWSC 469
Andersons Solicitors v Schigulski [2004] SASC 21; (2004) 88 SASR 1
ANZ Banking Group Ltd v Greig [1980] 1 NSWLR 112
Australia and New Zealand Banking Group Ltd v Donnelly [2012] NSWSC 1615
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Chateau Constructions (Aust) Limited v Zepinic [2013] NSWSC 1326
Chateau Constructions (Aust) Ltd v Zepinic (No 5) [2010] NSWSC 265
D'Auvergne v Cooper WN (1899) 256
Davidson Armstrong & Campbell Solicitors Nominee
Company Ltd v Morrison [2008] NZHC 2057
Ezekiel v Orakpo [1997] 1 WLR 340
Falcone and Williams v Mentyn; Pearce v Mentyn (No 2) [2004] TASSC 156; (2004) 13 Tas R 384
Fine Real Estate Network Pty Ltd v Howell (Supreme Court (NSW), Young J, 4 December 1997, unrep)
French Consulting Pty Ltd v Donald [2011] NSWSC 584
Gould v Purtle [2014] NSWSC 493
Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230
King Investment Solutions v Hussain [2005] NSWSC 1076; (2005) 64 NSWLR 441
Kolchmann v Meurice (1903) 1 KB 534
Leggott v Western 12 QBD 287
Linga v C & N Constructions Pty Ltd [2012] NTSC 8
McNamara Business & Property Law v Kasmeridis (No 2) [2006] SASC 167
Ndjamba v Toyota Finance Australia Ltd [2010]…

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 Galbally & O'Bryan v Easton

Details

AGLC: Galbally & O'Bryan v Easton [2016] NSWSC 77
Case: [2016] NSWSC 77
Decision Date: 24 February 2016

CaseChat Overview and Summary

The case of Galbally & O'Bryan v Easton involved the plaintiff, Galbally & O'Bryan, who had obtained a charging order against the first defendant, Easton, under section 106 of the Civil Procedure Act 2005. The dispute centred on the execution of this order against Easton’s shares in two public companies. The plaintiff subsequently sought further relief under section 126 of the same Act, including an order for the sale of the shares and the appointment of a registered liquidator to manage this sale. The legal issues revolved around the rights of the plaintiff as a judgment creditor in relation to the security interests charged by the order and whether the plaintiff was entitled to all costs incurred in the proceedings.

The court examined whether the plaintiff, as a judgment creditor, was entitled to the same relief as if the charging order had been made directly in their favour by the judgment debtor. It also considered whether the plaintiff was entitled to an order for all costs as against the first defendant. The court held that the plaintiff was entitled to the relief sought under section 126, which included the sale of the shares and the appointment of a liquidator. However, regarding the costs, the court determined that the plaintiff was not entitled to an order for all costs against the first defendant, instead exercising its discretion to order that the plaintiff recover its costs from the second defendant, who was also a party to the proceedings.

In summary, the court granted the plaintiff the relief sought under section 126 of the Civil Procedure Act, including the sale of the shares and the appointment of a liquidator. However, it denied the plaintiff's request for an order for all costs against the first defendant, and instead ordered that the plaintiff recover its costs from the second defendant.

Orders