Johnson v Leader; Johnson v Synnex - [2016] SADC 58

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
JOHNSON v LEADER; JOHNSON v SYNNEX
[2016] SADC 58
Judgment of His Honour Auxiliary Judge Clayton
15 June 2016
ADMINISTRATIVE LAW
Appeal from a decision of a Master who held that the costs of the trial, which are payable to the plaintiff Synnex pursuant to the order of the trial judge, be paid from the second defendant's share of the proceeds of sale of the defendants former matrimonial pursuant to a court order.
Held:
1. The order of the Master was not a determination by the Master but was the recording of an agreement reached by the second defendant during a hearing before the Master.
2. In this case a creditor is not paid by the sale of an asset subject to a charge but only when the money is paid out of court to the creditor.
3. A creditor with different remedies for the enforcement of the debt may exercise them "simultaneously or contemporaneously or successively or not at all".
Law of Property Act 1936 (SA) Part 8, referred to.
NZ Banking Group Ltd v Trustee of Maunder (2009) NSWSC 1356; Adamopoulos v Olympic Airways SA (1991) 25 NSW LR 75; French Caledonian Travel Service Pty Ltd (in liquidation) (2003) NSWSC 1008; Chea Theam Swee v Equitycorp Finance Group Ltd [1992] 1 AC 472; China and South Sea Bank v Tan Soon Chin (1990) 1 AC 536; In Re Bank of Credit and Commerce International SA (1998) AC 214; Pan Foods Co Importers and Distributors Pty Ltd v ANZ Banking Group (2000) 170 ALR 579, considered.

JOHNSON v LEADER; JOHNSON v SYNNEX
[2016] SADC 58

This is an appeal from a decision of a Master. There are two separate actions. Strictly there are two appeals. The Master heard applications in the two actions concurrently and delivered one set of reasons and orders. Some but not all the issues are common to both actions. I also heard submissions in both actions concurrently. Mr Manetta appeared for the appellants (defendants) and Mr Edmonds-Wilson appeared on the appeal for both of the respondents (plaintiffs).
The actions have a lengthy history. The ultimate point on the appeal concerns the distribution of the proceeds of sale of the defendants’ house pursuant to a court order. It is necessary to consider the history of the matter in order to put the appeal into perspective.
In one action the plaintiff was Leader Computers Pty Ltd. In the other action the plaintiff was Synnex Australia Pty Ltd. The plaintiffs were both suppliers to Arcom Computer Pty Ltd trading as A & R Computer Services, a retailer of computer equipment. The defendants Mr Johnson and Mrs Johnson were the only shareholders in Arcom. Leader and Synnex had both obtained from Mr Johnson guarantees in respect of the debt of A & R. In each case the guarantee was supported by a charge over the assets of Mr Johnson.
Mr and Mrs Johnson were…

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 Johnson v Leader; Johnson v Synnex

Details

AGLC: Johnson v Leader; Johnson v Synnex [2016] SADC 58
Case: [2016] SADC 58
Decision Date: 15 June 2016

CaseChat Overview and Summary

In the present appeal the appellants contend that the order of the Master was in error and that the Master's order was not a determination of the Master but was the recording of an agreement reached by Mrs Johnson during a hearing before the Master. The appellants further contend that a creditor is not paid by the sale of an asset subject to a charge but only when the money is paid out of court to the creditor. The appellants contend that a creditor with different remedies for the enforcement of the debt may exercise them "simultaneously or contemporaneously or successively or not at all". The appellants also contend that Synnex has already been paid one half the money held on behalf of Mr Johnson and that Synnex must give credit for that amount before Synnex can recover the balance of its costs from Mrs Johnson. The appeal was heard over three days and the transcript of argument before the Master extends to several hundred pages. The reasons of the Master which are the subject of the appeal extend to 77 pages. The transcript argument on this appeal extends to 290 pages.The court found that the appeal was not premature because the costs of Synnex have been adjudicated and an allocatur has been issued. The court found that Mrs Johnson had indicated she would give effect to an order which was a record of an agreement that she had reached with Synnex. The court found that the Master's order was a record of the agreement which had been reached in the course of argument. The court found that the Master was correct to hold that Synnex was not required to apply the remainder of Mr Johnson’s share in reduction of Mrs Johnson’s liability for the costs of Synnex. The court found that Synnex is entitled to look to Mrs Johnson for payment of the debt. It is not obliged to rely upon the charge given by Mr Johnson before looking to Mrs Johnson.The appeal was dismissed.

Orders