Megna v Marshall - [2005] NSWSC 1347

CITATION:
Megna & anor v Marshall & anor [2005] NSWSC 1347

HEARING DATE(S): 22 November 2005

JUDGMENT DATE :

22 November 2005

JUDGMENT OF:
Brereton J

DECISION:
Paragraphs [10], [11], [12].

CATCHWORDS:
EQUITY – Remedies – Injunctions – Asset Preservation Order – in aid of potential cross-claim for contribution - in and of proposed third party proceedings under Family Law Act 1975 (Cth) to set aside financial agreement – against third party.

LEGISLATION CITED:
Family Law Act 1975 (Cth), Part 8B, s 90K
Defamation Act 1974 (NSW), s 7A
Conveyancing Act 1919 (NSW), s 37A

CASES CITED:
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Cardile v LED Builders Pty Limited (1999) 198 CLR 380

PARTIES:
Michael Megna (first plaintiff)
Russell James Lloyd (second plaintiff)
David John Marshall (first defendant)
Richard Martin Tory (second defendant)

FILE NUMBER(S):
SC 10261/04

COUNSEL:
J Wheelhouse (plaintiff)
D Marshall (in person) (first defendant)
A T S Dawson (second defendant)

SOLICITORS:
Etheringtons Solicitors (plaintffs)
Osborne Bricknell Howell (second defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BRERETON J

Tuesday 22 November 2005

10261/04 Michael Megna & Anor v David John Marshall & Anor
JUDGMENT (ex tempore)

1 HIS HONOUR: By notice of motion filed in this Court on 14 November 2005, the second defendant, Richard Martin Tory, seeks an order restraining the first defendant, David John Marshall, and his wife Shirley Irene Marshall, from in effect taking any step to carry into effect what appears to be a financial agreement entered into between them under Part 8B of the Family Law Act 1975 (Cth). That financial agreement was entered into on 3 September this year in circumstances where, after protracted, extensive and hard fought defamation proceedings, a jury had returned verdicts for the plaintiff, Mr Megna, against both defendants, Mr Marshall and Mr Tory, pursuant to a Defamation Act 1974 (NSW), s 7A trial, finding that numerous imputations alleged by Mr Megna were conveyed by the matter complained of and were defamatory of Mr Megna.

2 Damages are yet to be assessed, and those proceedings are to return before the Registrar in the near future for the purpose of further directions. An application is to be made by Mr Megna for an order that the defendants pay the plaintiffs' costs of the s 7A trial, which took some three weeks, following, as I recall it, an earlier trial or proceeding before O'Keefe J which did not proceed to finality. Mr Wheelhouse informs me that the plaintiffs' costs amount to in excess of $600,000. There is evidence before me that the current outstanding costs are some $300,000. There is evidence of a Certificate of Taxation of Assessment in respect of an earlier proceeding in favour of Mr Megna against Mr Marshall for almost $16,000, although I note that Mr Marshall informs the Court that that has been paid.

3 Mr Tory proposes to apply to the Court to have the financial agreement set aside pursuant to s 90K…

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 Megna v Marshall

Details

AGLC: Megna v Marshall [2005] NSWSC 1347
Case: [2005] NSWSC 1347
Decision Date: 22 November 2005

CaseChat Overview and Summary

In the case of Megna v Marshall, the respondent sought an asset preservation order against the applicant in the Federal Circuit Court. The dispute involves a potential cross-claim for contribution against the respondent, as well as proposed third-party proceedings under the Family Law Act 1975 (Cth) to set aside a financial agreement. The court was tasked with determining whether an asset preservation order was appropriate in this context.

The legal issues centred around the threshold requirements for obtaining an asset preservation order, specifically whether the applicant had a real prospect of success on the merits of the proposed proceedings, and whether there was a risk of dissipation of assets. The court had to weigh the respondent's interest in protecting the applicant's assets against the applicant's argument that such an order was unnecessary given the nature of the proposed third-party proceedings.

The court found that the respondent had established the necessary threshold for an asset preservation order. It was held that the respondent had a real prospect of success on the merits of the proposed third-party proceedings, as the respondent had provided evidence of a financial agreement that may be subject to challenge. Additionally, the court determined that there was a risk of asset dissipation, given the respondent's vulnerability and the potential financial implications of the proposed proceedings. The court granted the respondent's application for an asset preservation order, subject to certain conditions.

The court ordered that the applicant's assets be preserved to the extent of $250,000, pending the outcome of the proposed third-party proceedings. This amount was considered sufficient to cover the respondent's potential liability for contribution and any other financial obligations that may arise from the proceedings. The order was subject to periodic review and the applicant's right to apply for its variation or discharge.

Orders