Johnson v Synnex Aust P/L; Johnson v Leader Computers P/L

The Full Court of the Supreme Court of South Australia considered applications for permission to appeal from a decision of an Auxiliary Judge of the District Court. The Auxiliary Judge had dismissed an appeal against a decision of a District Court Master concerning the payment of monies held in the Suitors Fund. These monies represented the net proceeds from the sale of the applicant's home, which had been jointly owned with the first defendant. The first defendant had charged his interest in the property to Synnex Australia Pty Ltd and Leader Computers Pty Ltd. The Master had ordered that costs payable to Synnex Australia Pty Ltd, pursuant to a trial judge's order, be paid from the applicant's portion of the Suitors Fund.

The legal issues before the Full Court included whether the Auxiliary Judge erred in finding that the Master's order was not a determination but rather a recording of an agreement made by the applicant. The court also had to consider the Auxiliary Judge's reasoning that a creditor is paid when money is disbursed from court to them, not merely upon the sale of an asset subject to a charge, and that a creditor with multiple enforcement remedies may pursue them independently. Crucially, the court was asked to determine whether the Auxiliary Judge erred in finding that Synnex Australia Pty Ltd was entitled to elect between seeking its costs from the proceeds of the sale of the first defendant's home or from the applicant personally.

The Full Court reasoned that the Auxiliary Judge had correctly identified that the Master's order reflected an agreement made by the applicant. The court affirmed the principle that a creditor's right to payment arises upon the actual disbursement of funds to them, and that a creditor is not precluded from pursuing different remedies concurrently or successively. The court found no error in the Auxiliary Judge's conclusion that Synnex Australia Pty Ltd had the right to elect the source from which its costs would be satisfied, given the nature of the charges and the orders in place.

The applications for permission to appeal were dismissed.