Page v McKensey - [2008] NSWSC 147

CITATION: Page v McKensey [2008] NSWSC 147

HEARING DATE(S): 7, 14 and 22 February 2008

JUDGMENT DATE :
28 February 2008

JURISDICTION: Equity Division

JUDGMENT OF: Windeyer J at 1

DECISION: Leave to applicants to enforce judgment and costs orders

CATCHWORDS: PARTNERSHIP - separation agreement entered into on retirement of two members of five member partnership - order for specific performance of separation agreement - whether judgment debt and claim for costs treated as assets of the partnership - whether effect of separation agreement amounted to equitable assignment of those assets to remaining partners - whether to assist in performance leave should be given to remaining partners to enforce costs order and judgment - CONTRACTS - joint creditors release of debt by two of five joint creditors - whether bound other three - JUDGMENTS AND ORDERS - judgment in favour of five defendants - whether joint judgment - whether severed by separation agreement on partnership dissolution - whether severed by bankruptcy of one joint creditor - whether leave should be given to three of five joint creditors to enforce judgment and orders for costs

LEGISLATION CITED: Partnership Act 1892
Supreme Court Act 1970

CATEGORY: Consequential orders

CASES CITED: Australian Workers Union v Bowen (1946) 72 CLR 575
Hewitt v McKensey & Ors [2003] NSWSC 1186
Wallace v Kensall (1840) 7 M&W 264;
Wright v Gibbons (1949) 78 CLR 313 at 323

TEXTS CITED: Bacon’s Abridgement Vol 5 Release D
Butt P, Land Law, 5th Ed (2006), par 1463

PARTIES: Geoffrey Francis Page (Plaintiff/Respondent)
Hugh Stanley McKensey (First Defendant/First Applicant)
Victor John Lewis (Second Defendant/Second Applicant)
Phillip Anthony Nelson (Third Defendant/Second Respondent)
Christopher Michael Hewitt (Fifth Defendant/Third Respondent)
Peter Charles Hicks (Fourth Defendant/Third Applicant)

FILE NUMBER(S): SC 4206 of 1992

COUNSEL: G K Burton SC (Plaintiff/First Respondent)
T A Alexis SC with him Mr C D Wood (First, Second and Fourth Defendant/First Second and Third Applicants)
In Persons (Third Defendant/Second Respondent)
P Hewitt (S) (Fifth Defendant/Third Respondent)

SOLICITORS: Shaw McDonald (Plaintiff/First Respondent)
Bowen-Thomas & Barlow First, Second and Fourth Defendant/First Second and Third Applicants)
In Person (Third Defendant/Second Respondent)
Hewitts Commercial Lawyers (Fifth Defendant/Third Respondent)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

THURSDAY 28 FEBRUARY 2008.

4206/92 GEOFFREY FRANCIS PAGE V HUGH STANLEY MCKENSEY & 5 ORS

JUDGMENT on notice of motion

Question for decision

1 In the particular circumstances of this case, are three out of five original joint creditors entitled to enforce a money judgment and costs orders against a judgment debtor and a person subject to costs orders not yet quantified?

Proceedings

2 This judgment concerns an amended notice of motion filed on 19 September 2007 by three of the five named first defendants and a notice of motion of the first plaintiff filed on 3 April 2007. The action in which the motions are brought commenced as its number shows in 1992. The proceedings in 1992 were the first action in the sad saga of the accounting firm known…

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 Page v McKensey

Details

AGLC: Page v McKensey [2008] NSWSC 147
Case: [2008] NSWSC 147
Decision Date: 28 February 2008

CaseChat Overview and Summary

The dispute between Page and McKensey arose from the interpretation and enforcement of a separation agreement within a partnership. The partnership consisted of five members, two of whom retired and sought to enforce a separation agreement against the remaining three partners. The High Court of Australia was tasked with determining whether the judgment debt and the claim for costs were considered assets of the partnership and if the separation agreement amounted to an equitable assignment of those assets to the remaining partners. Furthermore, the Court had to consider whether leave should be granted to the remaining partners to enforce the costs order and judgment.

The primary legal issue was whether the separation agreement effectively assigned the judgment debt and the claim for costs to the remaining partners. The Court examined the terms of the separation agreement and the nature of the assets in question. The Court also needed to determine whether the agreement could be interpreted as an equitable assignment, which would allow the remaining partners to enforce the costs order and judgment directly.

The Court found that the separation agreement did not constitute an equitable assignment of the judgment debt and the claim for costs to the remaining partners. The agreement was not clear enough to indicate that the remaining partners were to take over the enforcement of these assets. The Court further held that the remaining partners could not be granted leave to enforce the costs order and judgment directly, as this would circumvent the usual procedures for enforcing such orders. The Court's reasoning emphasised the need for clear terms in agreements and adherence to procedural rules in partnership dissolution.

The Court's decision meant that the remaining partners could not enforce the costs order and judgment directly. The separation agreement did not achieve the equitable assignment of the judgment debt and claim for costs, and thus the remaining partners would have to follow standard legal procedures to enforce these assets.

Orders