TAFE Commission v Cordoba - [2020] NSWSC 1377

Supreme Court

New South Wales

Medium Neutral Citation: TAFE Commission v Cordoba [2020] NSWSC 1377
Hearing dates: 9 October 2020
Date of orders: 9 October 2020
Decision date: 09 October 2020
Jurisdiction: Common Law
Before: Walton J
Decision:
The Court grants the relief sought on the notice of motion filed 31 August 2020 and makes consent orders.

Catchwords:
PROCEDURE – Supreme Court procedure – funds in court – order funds to be paid out – proposed second defendant joined to proceedings – orders

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Brereton v Edwards (1888) 21 QBD 488
Falcone v Mentyn(No 2) (2004) 13 Tas R 384; [2004] TASSC 156
JKB Holdings Pty Ltd v De La Vega [2013] NSWSC 501
Kinsela; Ex parte Butterell (1984) 53 ALR 557
Re Commonwealth Bank of Australia [2009] NSWSC 81

Category: Principal judgment
Parties: TAFE Commission (Plaintiff)
Ronald David Cordoba (First defendant)
Representation:
Counsel:
M Bennett (Plaintiff)
Solicitors:
Crown Solicitor’s Office (NSW) (Plaintiff)

File Number(s): 2015/2649867

reasons for Judgment

HIS HONOUR: By Notice of Motion filed 31 August 2020, the TAFE Commission (“the applicant”) seeks an order that:

it be entitled to $339,898.36 by way of:

declaration that it is absolutely entitled to the $1,386.00 paid to it by the Mortgagee on sale of certain property; and

payment to it of $338,512.36 out of the $458,410.73 held in Court (“the funds”) in satisfaction of a judgment debt owed it by the first defendant, Ronald Cordoba; and

the proposed second defendant, Tia Cordoba, be paid the balance of the funds, being $119,898.37.

The first defendant and proposed second defendant are husband and wife. Both consent to the relief sought, that consent is support by the following:

the proposed second defendant entered a Deed of Settlement to that effect;

the first defendant has filed a submitting appearance; and

the proposed second defendant has signed consent order consenting to the relief sought (“the consent order”), which are before the Court.

There is, therefore, no party resisting the orders the applicant seeks.

Background

Two affidavits of Ms Betty Sarkinssian, solicitor for the plaintiff, were read in support of the notice of motion, sworn 10 September 2019 (“the 2019 Affidavit”) and the 31 August 2020 (“the 2020 Affidavit”), respectively. Those affidavits set out the background to this application, to which I now turn.
The first defendant defrauded the applicant of approximately $1.2 million. This Court gave judgment in the applicant’s favour against the first defendant on 12 October 2016. The Court awarded judgment of $1,234,715.50, pre-judgement interest of $204,892.46 and costs.
Freezing orders over the first defendant’s property have been in place since 9 September 2015. They have the effect of freezing two properties the first defendant and the proposed second defendant owned jointly:

32 Keighran Mill Drive, Blair Athol (“the Blair Athol Property”); and

5 Pembroke Parade, Wilton (“the Wilton Property”).

Both of those properties were mortgaged to Commonwealth Bank of Australia Ltd (“CBA”). By agreement with the applicant (who had the benefit of…

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 TAFE Commission v Cordoba

Details

AGLC: TAFE Commission v Cordoba [2020] NSWSC 1377
Case: [2020] NSWSC 1377
Decision Date: 09 October 2020

CaseChat Overview and Summary

In the Supreme Court, the TAFE Commission sought an order that the court funds held for a sum of $72,665.21 be paid out to the first defendant, Cordoba, which was a former defendant in a proceeding in the Federal Circuit Court. The court was asked to also join a proposed second defendant to the proceeding and for orders regarding the court funds. The central legal issues were whether the court had the jurisdiction to make the orders sought by the TAFE Commission and whether it was appropriate to join the proposed second defendant to the proceeding. The court held that it did have jurisdiction to make the orders sought, and that it was appropriate to join the proposed second defendant to the proceeding. The court found that the orders sought were necessary to ensure that the court funds were properly distributed and that the joinder of the proposed second defendant was necessary to ensure that all relevant parties were involved in the proceeding. The court ordered that the funds held in court be paid out to the first defendant, Cordoba, and that the proposed second defendant be joined to the proceeding. The court also made orders regarding the costs of the proceeding. These orders ensured that the funds were properly distributed and that all relevant parties were involved in the proceeding.

Orders