Kevern v Marshall

[2004] NSWSC 300

CITATION:	Kevern v Marshall [2004] NSWSC 300
HEARING DATE(S):	15/04/04
JUDGMENT DATE:	15 April 2004
JUDGMENT OF:	Gzell J
DECISION:	Motion dismissed with costs.
CATCHWORDS:	PROCEDURE - Supreme Court procedure - Notice of motion in the proceedings to enforce orders of the court - Only order made was vacation of earlier costs orders - Settlement called for defendant to pay upon full compliance by plaintiff to vest title and possession to chattels in defendant - Failure of complete compliance - No payment by defendant - No undertaking to do so embodied in court order - Whether appropriate to enforce settlement by notice of motion in the proceedings under the Supreme Court Act 1970, s 63
LEGISLATION CITED:	Supreme Court Rules 1970 Supreme Court Act 1970
CASES CITED:	Abigroup Ltd v Abignano (1992) 39 FCR 74 Spindler v Balog (1959) 76 WN (NSW) 391 Biba Ltd v Stratford Investments Ltd [1973] Ch 281 Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510 Roberts v Gippsland Agricultural & Earthmoving Contracting Co Pty Ltd [1956] VLR 555 Phillips v Walsh (1990) 20 NSWLR 206
PARTIES :	Jeff John Kevern - Plaintiff Garry Marshall - Defendant
FILE NUMBER(S):	SC 4544/99
COUNSEL:	Mr J Fellows (Solicitor) Mr A Radojev
SOLICITORS:	Adrian & Fellows Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 15 APRIL 2004

4544/99 JEFF JOHN KEVERN v GARRY MARSHALL

EX TEMPORE JUDGMENT

1 Before the court is a notice of motion filed by the plaintiff seeking to enforce orders of the court made in the proceedings on 28 February 2001.

2 The Supreme Court Rules 1970, Pt 42 r 2 deals with enforcement of orders for the payment of money. It does not create substantive rights in the parties that do not otherwise accrue from the orders (Abigroup Ltd v Abignano (1992) 39 FCR 74 at 85). Here the only order made was to vacate all previous orders as to costs.

3 An undertaking to pay money is not a judgment or order and does not fall under the rule (Spindler v Balog (1959) 76 WN (NSW) 391 at 393). An undertaking given to the court and embodied in an order, even as to payment of money, is enforceable as a judgment or order like an injunction by committal under r 6 (Biba Ltd v Stratford Investments Ltd [1973] Ch 281 at 287). Here no undertaking was given to the court, let alone it being embodied in an order of the court.

4 The Supreme Court Act 1970, s 63 provides that the court shall grant all such remedies as any party may appear entitled to so that as far as possible all matters in controversy may be completely and finally determined and multiplicity of legal proceedings are avoided. It has been held that this provision grounds jurisdiction to enforce a settlement or compromise by motion in the original proceedings (Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510 at 526) at least in simple cases (Roberts v Gippsland Agricultural & Earthmoving Contracting Co Pty Ltd [1956] VLR 555 at 557).

5 This course should not, however, be adopted where there are substantial matters in controversy that go beyond the ambit of the proceedings as originally constituted or where in the interests of justice, disposition of the matter as on summary judgment, is inappropriate (Phillips v Walsh (1990) 20 NSWLR 206 at 210).

6 Here the plaintiff agreed to give the defendant title and possession to bee-keeping and associated equipment at various locations. The agreement was that, provided he complied fully with those requirements, the defendant would pay him $52,500 by equal instalments over 5 years.

7 The plaintiff failed to comply fully with the requirements. For example a truck, forklift and charger had been removed by a landlord of the plaintiff and at least one of those items had been sold by him to discharge partially rent owed by the plaintiff. The defendant has paid the plaintiff nothing notwithstanding that he took possession of some equipment.

8 The relief the plaintiff seeks is rectification of the agreement between the parties or a claim for unjust enrichment. They stand outside the ambit of the terms of settlement and raise substantial matters of controversy. In my view it is inappropriate to deal with these issues in summary determination.

9 I dismiss the plaintiff’s motion. In my view costs should follow the event. I order the plaintiff to pay the defendant’s costs.

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Last Modified: 04/16/2004