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McLeary v Swift

McLeary v Swift

Case [2014] NSWSC 1414 16 October 2014

Enforcement Orders

Inherent Jurisdiction

Civil Procedure

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: McLeary v Swift [2014] NSWSC 1414
Hearing dates: 1 October 2014
Decision date: 16 October 2014
Jurisdiction: Equity Division
Before: Hallen J
Decision:
Direct the parties to bring in short minutes of order reflecting these reasons. Stand the matter over for 7 days, or such other mutually agreed period, to enable the short minutes of order to be prepared and delivered to my Associate. On the adjourned date, any argument as to the content of the short minutes of order or on the calculation of interest and the payment thereof will be heard.

Catchwords: JUDGMENTS AND ORDERS - Enforcement of orders - Whether order should be varied to make payment by the Defendant to the Plaintiff rather than to the ATO in circumstances where the Plaintiff has caused payment to the ATO to be made - Enforcement orders - s 135 Civil Procedure Act - Inherent jurisdiction to vary orders - Whether jurisdiction should be exercised
Legislation Cited: Civil Procedure Act 2005 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd [2007] NSWCA 57
Despot v Registrar General of NSW [2014] NSWSC 1002
Foster v ACCC [2014] FCA 240
Georges v Wieland [2010] NSWSC 1378
Hickie v Land Enviro Corp Pty Ltd [2013] NSWSC 706
McLeary v Swift [2012] NSWSC 1403
McLeary v Swift [2013] NSWSC 216
McLeary v Swift [2013] NSWSC 1674
McLeary v Swift [2014] NSWSC 870
Deborah Raulfs v Fishy Bite Pty Limited (No 3) [2013] NSWSC 1732
Riltang Pty Ltd v L Pty Ltd [2004] NSWSC 977
Stokes (by a tutor) v McCourt [2013] NSWSC 1014
Swift v McLeary [2013] NSWCA 173
Swift v McLeary [2014] NSWCA 52
Xu v Wan Ze Property Development (Aust) Pty Ltd (in Liquidation) [2014] FCA 461
Category: Principal judgment
Parties: Jeffrey John McLeary (Plaintiff)
Martin Smith (Defendant)
Representation: Counsel:
Mr R McKeand SC; Mr B Bradley (Plaintiff)
Mr J T Johnson (Defendant)
Solicitors:
Shotters Lawyers (Plaintiff)
Beazley Singleton Lawyers (Defendant)

File Number(s): 2011/69385

Judgment

The Claims

HIS HONOUR: This is one of a number of hearings involving these parties who have, since about 2009, been involved in litigation with each other. I derive some of the facts set out from one, or other, of the reasons for judgment, given in their related matters, which facts cannot, any longer, be the subject of dispute between them.

The matter before me relates to a notice of motion filed on 22 August 2014, by Jeffrey John McLeary, the Plaintiff. He sought leave to file an amended notice of motion dated 4 September 2014 at the hearing before me and, as there was no opposition by counsel for Martin Swift, the Defendant, I granted him leave to do so. (I shall refer to each of the parties in this way rather than the role which he has played in one, or other, of the proceedings.)

In the amended…

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 McLeary v Swift

Details

AGLC: McLeary v Swift [2014] NSWSC 1414
Case: [2014] NSWSC 1414
Decision Date: 16 October 2014

CaseChat Overview and Summary

The matter between McLeary and Swift came before the court for consideration of the enforcement of orders made by the court. The primary issue was whether the order should be varied to require the defendant to make payment directly to the plaintiff rather than to the Australian Taxation Office (ATO). The plaintiff had already caused payment to be made to the ATO, and now sought to enforce the order in a different manner. The court was required to determine whether it had the inherent jurisdiction to vary enforcement orders and, if so, whether it should exercise that jurisdiction in the circumstances of this case.

The court considered the relevant statutory provisions and the inherent jurisdiction of the court to vary orders. It examined the purpose of the enforcement provisions and the circumstances in which the court might exercise its discretion to vary an order. The court noted that while the general rule was that orders should be enforced as made, there may be circumstances in which it is appropriate to vary an order to achieve justice between the parties. The court also considered the principle that the party seeking variation of an order bears the onus of establishing that it is appropriate to do so.

After considering the arguments of the parties and the relevant authorities, the court concluded that it did have the inherent jurisdiction to vary enforcement orders in appropriate circumstances. However, in this case, the court was not satisfied that it was appropriate to exercise that jurisdiction. The court noted that the plaintiff had caused payment to be made to the ATO, and that the defendant had fulfilled its obligations under the original order. The court also noted that there was no evidence of any prejudice to the plaintiff as a result of the defendant's payment to the ATO. Accordingly, the court declined to vary the order and ordered that the defendant pay the amount due under the original order to the ATO.

Orders