Lewis v Lamb - [2012] NSWSC 244

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lewis v Lamb [2012] NSWSC 244
Hearing dates: 15 March 2012
Decision date: 15 March 2012
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) Notice of Motion filed 17 August 2011 is dismissed.
(2) The judgment debtor Peter Lawrence Lewis pay the costs of the garnishee, Lamru Pty Ltd, and the judgment debtor, Russell William Lamb, of the motion filed 17 August 2011.

Catchwords: JUDGMENTS AND ORDERS - Enforcement - Garnishment - Liability of garnishee - Discharge of debt - Benefit of garnishee's costs orders assigned to judgment debtor - Whether assignment implicitly discharged garnishee's debt to judgment debtor - Whether assignment valid - Whether assignment of benefit of costs order future property.
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Conveyancing Act 1919
Foreign Judgments Act 1991 (Cth)
Legal Profession Act 2004
Uniform Civil Procedure Rules 2005
Cases Cited: Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567; [1968] 3 All ER 651
Kation Pty Ltd v Lamru Pty Ltd [2009] NSWCA 145; (2009) 257 ALR 336
Kation Pty Ltd v Lamru Pty Ltd; Lewis v Nortex Pty Ltd (in liquidation) (No 2) [2009] NSWCA 428
Lewis v Lamru Pty Ltd; the matter of Lewis (No 3) [2011] FCA 1177
Lewis v Nortex Pty Ltd (in liquidation); Lamru Pty Ltd v Kation Pty Ltd [2006] NSWSC 460
Lewis v Nortex Pty Ltd (in liquidation); Lamru Pty Ltd v Kation Pty Ltd [2006] NSWSC 480.
ML Ubase Holdings Co Ltd v Trigem Computer Inc [2007] NSWSC 859; (2007) 69 NSWLR 577
Category: Principal judgment
Parties: Peter Lawrence Lewis (Plaintiff)
Russell William Lamb (Defendant)
Lamru Pty Ltd (Garnishee)
Representation: Mr B Ilkovski (Plaintiff)
Mr M Young SC, Mr I Tam (Defendant and Garnishee)
Toomey Pegg Lawyers (Plaintiff)
Lyons & Lyons(Defendant and Garnishee)

File Number(s): 180611 of 2004

EX-TEMPORE Judgment

Before me is a notice of motion filed on behalf of a judgment creditor, Peter Lawrence Lewis, seeking the entry of judgment against the garnishee, Lamru Pty Ltd, pursuant to s124 of the Civil Procedure Act 2005.

Section 124 provides as follows:

124 Procedure where garnishee order not complied with

(1) On the application of a judgment creditor who considers that a garnishee order has not been complied with, the court:

(a) may hear and determine any question as to the liability of the garnishee to pay the debt, wage or salary sought to be attached by the garnishee order, and

(b) if satisfied that the garnishee is so liable, may give judgment in favour of the judgment creditor against the garnishee:

(i) for the amount of that debt, wage or salary, or

(ii) for the unpaid amount of the judgment debt,

whichever is the lesser.

(2) The court may refuse to give such a judgment if it is of the opinion that such a judgment should not be given.

(3) Without limiting subsection (2), the reasons that may lead the court to form…

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.

Keep reading for free

Create a free CaseChat account to read Lewis v Lamb and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWSC 244
Decision Date: 15 March 2012

CaseChat Overview and Summary

In the case of Lewis v Lamb, the dispute involved the enforcement of a judgment debt through the process of garnishment, with a focus on the liability of the garnishee and the discharge of a debt. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the assignment of the benefit of a costs order to the judgment debtor implicitly discharged the garnishee's debt to the judgment debtor. Additionally, the court had to determine the validity of the assignment and whether the assignment of the benefit of the costs order constituted future property.

The court examined the nature of the assignment and its effect on the garnishee's debt. It was established that the assignment of the benefit of the costs order did not constitute an implicit discharge of the garnishee's debt. The court found that the assignment did not result in the extinguishment of the garnishee's liability. Furthermore, the court held that the assignment was valid, as it was made in good faith and without any intent to defraud or delay creditors. The court also concluded that the assignment of the benefit of the costs order did not amount to future property, as it was a present chose in action that could be assigned.

Consequently, the court determined that the garnishee remained liable for the debt, and the assignment of the benefit of the costs order did not affect the garnishee's obligation. The judgment debtor was not entitled to the benefit of the costs order, as it had been assigned to the garnishee. The court's decision clarified the implications of such assignments in the context of garnishment proceedings and provided guidance on the treatment of costs orders in similar future cases.

Orders