New South Wales
Court of Appeal
CITATION: Page v McKensey & Ors [2009] NSWCA 127 HEARING DATE(S): 22 April 2009
JUDGMENT DATE:
4 June 2009JUDGMENT OF: Beazley JA at 1; Ipp JA at 2; Macfarlan JA at 3 DECISION: 1. That the appeal be dismissed with costs.
2. That the amount of the judgment debt and interest paid into Court as a condition of the grant of a stay pending this appeal be paid out to the first, second and third respondents.
3. In proceedings CA 40034/94, pursuant to Notice of Motion filed on 5 March 2009:
(i) Grant leave to Hugh Stanley McKensey, Victor John Lewis and Peter Charles Hicks to proceed to assessment and enforcement of costs orders made on 28 February 1995 and 29 January 1996.
(ii) Order that Hugh Stanley McKensey, Victor John Lewis and Peter Charles Hicks have leave to issue a writ of execution against Geoffrey Francis Page to enforce the said costs orders.
(iii) Order that interest be paid on the said costs orders from 27 April 1996 until payment.
(iv) Order that Geoffrey Francis Page pay the applicants' costs of the Notice of Motion.CATCHWORDS: EQUITY - general principles - assignments in equity - equitable assignment pursuant to Retiring Partners agreement of inchoate interests in judgment debt and court orders to which partnership members entitled - PROCEDURE - leave to some of judgment creditors to enforce judgment where the interests of the remainder of the judgment creditors had been assigned to them LEGISLATION CITED: Civil Procedure Act 2005
Income Tax Assessment Act 1936 (Cth)
Unifrom Civil Procedure Rules 2005CATEGORY: Principal judgment CASES CITED: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
CGU Insurance v AMP Financial Planning [2007] HCA 36; (2007) 235 CLR 1
House v The King [1936] HCA 40; (1936) 55 CLR 499
Re Frank Hill [1921] 2 KB 831
Suttor v Gundowda [1950] HCA 35; (1950) 81 CLR 418TEXTS CITED: Meagher Gummow & Lehane's Equity: Doctrines and Remedies, 4th ed (2002) Butterworths PARTIES: Geoffrey Francis Page (Appellant)
Hugh Stanley McKensey (First Respondent)
Victor John Lewis (Second Respondent)
Peter Charles Hicks (Third Respondent)
Philiip Anthony Nelson (Fourth Respondent)
Christopher Michael Hewitt (Fifth Respondent)FILE NUMBER(S): CA 40154/08 COUNSEL: G Burton SC (Appellant)
T A Alexis SC/C D Wood (First, Second and Third Respondents)
Philip Anthony Nelson (In person)
Christopher Michael Hewitt (Submitting Appearance)SOLICITORS: Turnbull Hill Lawyers (Appellant)
Bowen-Thomas & Barlow (First, Second and Third Respondents)
Philip Anthony Nelson (In person)
Hewitts Commercial Lawyers (Fifth Respondent)LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): SC 4206/92 LOWER COURT JUDICIAL OFFICER: Windeyer J LOWER COURT DATE OF DECISION: 22 and 28 February 2008 and 4 March 2008
CA 40154/2008
SC 4206/1992THURSDAY 4 JUNE 2009BEAZLEY JA
IPP JA
MACFARLAN JA
PAGE v McKENSEY & ORS
Judgment
1 BEAZLEY JA: I agree with Macfarlan JA.
2 IPP JA: I agree with Macfarlan JA.
: This is…
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- AGLC
- Page v McKensey [2009] NSWCA 127
- Case
- [2009] NSWCA 127
- Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute between partners of a dissolved law firm, Page and McKensey, and others, regarding the equitable assignment of interests in a judgment debt and associated court orders. The primary issue before the Court of Appeal of New South Wales was whether certain assignments of inchoate interests in a judgment debt and costs orders were valid in equity, and consequently, whether leave should be granted to some judgment creditors to enforce those orders.
The court was required to determine the validity of equitable assignments of the judgment creditors' interests in a judgment debt and subsequent costs orders. Specifically, the court had to consider whether the assignments, made pursuant to a Retiring Partners agreement, effectively transferred the assignors' rights to the assignees, thereby entitling the assignees to enforce the judgment and costs orders. A further issue was whether leave should be granted to certain respondents to proceed with the enforcement of costs orders, given that the interests of other judgment creditors had been assigned.
The Court of Appeal upheld the validity of the equitable assignments. The court reasoned that the assignments, though of inchoate interests, were sufficiently clear and intended to operate immediately, thus satisfying the requirements for an equitable assignment. The court applied established principles of equity concerning the assignment of choses in action, noting that an assignment of future property or a mere expectancy could be enforced in equity once the property came into existence. The court also found that the assignments of the judgment creditors' interests were valid and that the assignees were entitled to enforce the judgment debt and costs orders.
The appeal was dismissed with costs. The judgment debt and interest paid into court were ordered to be paid out to the first, second, and third respondents. Furthermore, leave was granted to Hugh Stanley McKensey, Victor John Lewis, and Peter Charles Hicks to proceed to the assessment and enforcement of costs orders made on 28 February 1995 and 29 January 1996, including the issuance of a writ of execution against Geoffrey Francis Page and the payment of interest on those costs orders.
The court was required to determine the validity of equitable assignments of the judgment creditors' interests in a judgment debt and subsequent costs orders. Specifically, the court had to consider whether the assignments, made pursuant to a Retiring Partners agreement, effectively transferred the assignors' rights to the assignees, thereby entitling the assignees to enforce the judgment and costs orders. A further issue was whether leave should be granted to certain respondents to proceed with the enforcement of costs orders, given that the interests of other judgment creditors had been assigned.
The Court of Appeal upheld the validity of the equitable assignments. The court reasoned that the assignments, though of inchoate interests, were sufficiently clear and intended to operate immediately, thus satisfying the requirements for an equitable assignment. The court applied established principles of equity concerning the assignment of choses in action, noting that an assignment of future property or a mere expectancy could be enforced in equity once the property came into existence. The court also found that the assignments of the judgment creditors' interests were valid and that the assignees were entitled to enforce the judgment debt and costs orders.
The appeal was dismissed with costs. The judgment debt and interest paid into court were ordered to be paid out to the first, second, and third respondents. Furthermore, leave was granted to Hugh Stanley McKensey, Victor John Lewis, and Peter Charles Hicks to proceed to the assessment and enforcement of costs orders made on 28 February 1995 and 29 January 1996, including the issuance of a writ of execution against Geoffrey Francis Page and the payment of interest on those costs orders.
Orders
Orders of the court
1. That the appeal be dismissed with costs. 2. That the amount of the judgment debt and interest paid into Court as a condition of the grant of a stay pending this appeal be paid out to the first, second and third respondents. 3. In proceedings CA 40034/94, pursuant to Notice of Motion filed on 5 March 2009: (i) Grant leave to Hugh Stanley McKensey, Victor John Lewis and Peter Charles Hicks to proceed to assessment and enforcement of costs orders made on 28 February 1995 and 29 January 1996. (ii) Order that Hugh Stanley McKensey, Victor John Lewis and Peter Charles Hicks have leave to issue a writ of execution against Geoffrey Francis Page to enforce the said costs orders. (iii) Order that interest be paid on the said costs orders from 27 April 1996 until payment. (iv) Order that Geoffrey Francis Page pay the applicants' costs of the Notice of Motion.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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