Wentworth v Rogers - [2003] NSWSC 472

CITATION: Wentworth v Rogers [2003] NSWSC 472

HEARING DATE(S): 5.5.03

JUDGMENT DATE:
16 June 2003

JURISDICTION: Common Law
Court of Appeal

JUDGMENT OF: Miles AJ

DECISION: Applications for review dismissed. Parties may be heard on costs. Otherwise order that the unsuccessful applicant for review pay the costs of the successful respondent of the review and the application to the Registrar. Order that Ms Wentworth pay the costs of the trustees, both of the review and of the hearing before the Registrar of the motions to set aside the garnishment notices.

CATCHWORDS: Garnishment - garnishment notice addressed to bank holding trust funds - judgment debtor as beneficiary in trust - whether debt due and accruing from bank to judgment creditor was not - discretionary trust - several beneficiaries - whether debt due and accruing from trustees to judgment creditor - it was not.

LEGISLATION CITED: Richie Supreme Court Practice NSW
Supreme Court Rules
Judgment Creditors Remedies Act 1904

CASES CITED: Webb v Stenton (1883) 11 QBD 518

PARTIES :
Katherine WENTWORTH - Plaintiff
Gordon John ROGERS - Defendant

FILE NUMBER(S): SC 19228/82; 008/86

COUNSEL: Plaintiff in person
Beazley - Defendant

SOLICITORS:

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 19228/82; 008/86

LOWER COURT
JUDICIAL OFFICER : Acting Registrar Whitehead

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MILES AJ

16 June 2003
19228/82
008/86

Katherine WENTWORTH v Gordon John ROGERS

JUDGMENT

1 HIS HONOUR: There are two applications before the court by which the applicant, Ms Wentworth, seeks review of a decision or decisions of Acting Registrar Whitehead (the Registrar) handed down on 3 March 2003.

2 Ms Wentworth sued the first respondent, Mr Rogers, for damages for assault in the Common Law Division (No 17228 of 1982). Mr Rogers obtained a verdict in his favour on 20 December 1985. Ms Wentworth appealed to the Court of Appeal (No 8 of 1986). On 6 March 1987 the appeal was allowed and the Court of Appeal ordered a re-trial. Mr Rogers was ordered to pay Ms Wentworth’s costs of the appeal, the costs of the first trial to abide the result of the second trial. The second trial resulted in judgment in favour of Ms Wentworth. Mr Rogers was ordered to pay $2,680 by way of damages and one half of Ms Wentworth’s costs. The costs of the trials and of the appeal were assessed or taxed and certificates of costs issued in respect of each of the two proceedings, that is to say, the two trials in the Common Law Division on the one hand, and the appeal in the Court of Appeal on the other. Relying partly on these certificates of costs, Ms Wentworth applied under Part 36 r 3 for leave to file and serve a garnishment notice in respect of each of the two proceedings. The garnishee was named as St George Bank Ltd and the debt sought to be attached was described thus – “Monies held in the account for the Estate of the…

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.

Keep reading for free

Create a free CaseChat account to read Wentworth v Rogers and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] NSWSC 472
Decision Date: 16 June 2003

CaseChat Overview and Summary

In the case of Wentworth v Rogers, the plaintiff sought to enforce a judgment debt through a garnishment order against funds held by a bank in a discretionary trust of which the defendant, Rogers, was a beneficiary. The issue before the court was whether the garnishment notice addressed to the bank was effective to claim the trust funds, given that the debt was not due and accruing from the bank to the judgment creditor but from the trustees to the judgment creditor. The court had to determine whether the debt due and accruing from the trustees to the judgment creditor could be satisfied by garnishing the trust funds held by the bank.

The court examined the nature of discretionary trusts and the relationship between the trustees, the beneficiaries, and the bank holding the trust funds. It considered whether the debt, owing from the trustees to the judgment creditor, could be directly claimed from the trust funds held by the bank. The court concluded that the garnishment notice did not effectively reach the trust funds because the debt was not due and accruing from the bank to the judgment creditor, but rather from the trustees. The court emphasised that the beneficiaries of a discretionary trust do not have a proprietary interest in the trust funds until a distribution is made to them.

The outcome of the case was that the garnishment order was ineffective in this context. The court held that since the debt was not due and accruing from the bank to the judgment creditor, the garnishment notice could not be used to claim the trust funds held by the bank. The discretionary nature of the trust and the separation of the trustees' liability from the beneficiaries' interests were critical factors in this determination.

The final orders of the court reflected this reasoning, confirming that the garnishment notice was ineffective and that the judgment creditor could not claim the trust funds held by the bank through this method.

Orders