District Court New South Wales Medium Neutral Citation: Leung in her capacity as Executrix of the Estate of the late Robert Ho v Fordyce [2021] NSWDC 522 Hearing dates: 15-16 and 23 July 2021 Date of orders: 8 October 2021 Decision date: 08 October 2021 Jurisdiction: Civil Before: J Smith SC, DCJ Decision: (1) The amount of $63,389.40 held in Court be paid to Louise Aileen Fordyce. (2) These orders are stayed pending any appeal or application for leave to appeal from them. Catchwords: JUDGMENTS AND ORDERS — Enforcement — Garnishee order — Attachment of debts Legislation Cited: Civil Procedure Act 2005 (NSW Conveyancing Act 1919 (NSW) District Court Act 1973 (NSW) Judicature Act 1873 Legal Profession Act 2004 (NSW) Personal Property Securities Act 2009 (Cth) Property Law Act 1974 (Qld) Trustee Act 1925 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Anning v Anning (1907) 4 CLR 1049 Baker v Dewey (1823) 1 B & C 704; 107 ER 259 Blacktown Concrete Services Pty Ltd v Ultra Refurbishing & Construction Pty Ltd (in liq) (1998) 43 NSWLR 484 Carpenter v Buller (1841) 8 M & W 209; 151 ER 1013 Corin v Patton (1990) 169 CLR 540 Evans v Rival Granite Quarries Ltd [1910] 2 KB 979 Hale v Victoria Plumbing Co Ltd [1966] 2 QB 746 Holt v Heatherfield Trust Ltd [1942] 2 KB 1 In Re Combined Weighing & Advertising Machine Co (1889) 43 Ch D 99 Kioa v West (1985) 159 CLR 550 Marchesi v Apostoulou [2006] FCA 1122; 235 ALR 136 Marcolongo v Chen (2011) 242 CLR 546 MG Charley Pty Ltd v FH Wells Pty Ltd [1963] NSWR 22 Milroy v Lord (1862) 4 De GF & J 264 Minister for Immigration & Border Protection v WZARH (2015) 256 CLR 326 Morgan & Son Ltd v Martin Johnson & Co Ltd [1949] 1 KB 107 Nathan v Giles (1814) 5 Taunt 558 Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 Norton v Yates [1906] 1 KB 112 Relwood Pty Ltd v Manning Homes Pty Ltd (No. 2) [1992] 2 Qd R 197 Robson v Smith [1895] 2 Ch 118 Russell v Duke of Norfolk [1949] 1 All ER 109 Tapp v Jones (1875) LR 10 QB 593 Wentworth v Rogers [2003] NSWSC 472 Zreika v Royal (2019) 271 FCR 65 Texts Cited: Heydon, Leeming and Turner, Meagher, Gummow & Lehane's Equity Doctrine & Remedies (5th ed, 2015, LexisNexis online) at [39-070] Young, Croft and Smith, On Equity (Lawbook Co) at [10-310] JD Heydon, Heydon on Contract, (Thomson Reuters) at [6.70] Category: Procedural rulings Parties: Claudia Leung in her capacity as Executrix of the Estate of the late Robert Ho (First Plaintiff) Rhodium NSW Pty Ltd (Second Plaintiff) The Trading House Pty Ltd (Third Plaintiff) Paul Mervyn Fordyce (First Defendant) PMFPL Pty Ltd (Second Defendant) Rhonda Slattery (Interested Party/Garnishee) Louise Aileen Fordyce (Interested Party) Representation: Counsel: Ms K Marina Dulhunty (Plaintiffs) Mr Swanson (Louise Fordyce) Solicitors: HWL Ebsworth (Plaintiffs) Self represented (Paul Mervyn Fordyce) PMFL Pty Ltd (Paul Mervyn Fordyce) Self represented (Rhonda Slattery) File Number(s): 2021/18135 Publication restriction: Nil Judgment 1. On 30 March 2021 Rhonda Slattery paid $63,389.40 into Court pursuant to a garnishee order and orders made by Judge Wilson SC. There are three claims of entitlement to that sum. The hearing of those claims has taken place over several days, involved hundreds of pages of evidence and many sets of written submissions. 2. It is necessary to set out only a brief summary of the background facts. The first defendant (Mr Fordyce) was once a solicitor who relevantly practised first, as a sole practitioner, and then as principal of an incorporated legal practice (conducted by the second defendant). He acted in this capacity for Mr Ho, a Sydney restauranteur, in a number of proceedings. When Mr Ho died, the plaintiff became the executor of his estate. 3. The plaintiff then brought proceedings against Mr Fordyce and the second defendant successfully claiming that they had breached their costs disclosure obligations. The plaintiff also obtained a costs order against the defendants. Those orders were governed by the regime provided for in the Legal Profession Act 2004 (NSW) (LPA). The costs the subject of those orders was assessed by Christopher Wall in the amount of $284,099.31. On 21 January 2021 the plaintiff obtained judgment against the defendants in that amount in this Court. 4. On 19 March 2021 the Court made a garnishee order requiring Rhonda Slattery to pay into Court any debts owed by her to the defendants. The basis of that order was a judgment in the Local Court given on 10 July 2017 in favour of Mr Fordyce against Mrs Slattery in the amount of $63,389.40. This judgment was in respect of unpaid legal fees. 5. On 1 April 2021 Mrs Slattery paid that amount into Court. 6. In the meantime, on 22 March 2021, Mr Fordyce had filed a notice of motion seeking a stay of the proceedings pending the outcome of a number of other matters. On 27 May 2021 he was given leave to amend that motion to seek two further orders. The relevant one of those was: "That if the plaintiffs are not creditors of the defendants, which is denied, then their claim to any monies under the garnishee order are subject to the claim of Louise Aileen Fordyce as a second creditor of Paul Mervyn Fordyce pursuant to the registered General Security Agreement granted by Paul Mervyn Fordyce to Louise Aileen Fordyce on 8 November 2016 and to the Deed of Assignment between Paul Mervyn Fordyce and Louise Aileen Fordyce dated 15 March 2019 of, inter alia, the monies paid into Court in these proceedings pursuant to the garnishee." Louise Fordyce is Mr Fordyce's wife. 1. On 8 July 2021 Mr Fordyce filed a further motion seeking orders that the judgment entered on 21 October 2021 be set aside, the garnishee order be set aside and the sum of $63,389.40 paid into Court by Mrs Slattery be paid to Louise Fordyce. The reference to 21 October 2021 should have been to 21 January 2021. 2. Before turning to the arguments raised by each of the parties (by which term I include both Mrs Slattery and Mrs Fordyce), it is necessary to consider the nature of the issues before the Court. 3. A judgment debt may be enforced in a number of ways including by way of a garnishee order. The history and nature of this type of enforcement was examined by McPherson S.P.J. in Relwood Pty Ltd v Manning Homes Pty Ltd (No. 2) [1992] 2 Qd R 197 (see also the consideration by Santow J in Blacktown Concrete Services Pty Ltd v Ultra Refurbishing & Construction Pty Ltd (in liq) (1998) 43 NSWLR 484). 4. The current source of the power to make a garnishee order is the Civil Procedure Act 2005 (NSW) (CPA), s 106(1)(b). 5. Section 117(1) of the CPA provides that a garnishee order operates to attach, to the extent of the amount outstanding under the judgment, all debts that are due or accruing from the garnishee to the judgment debtor at the time of the order. There are a number of important qualifications to this. 6. First, the garnishee can both set-off against the judgment debtor (Nathan v Giles (1814) 5 Taunt 558; Tapp v Jones (1875) LR 10 QB 593) and rely on a cross-claim against it: Hale v Victoria Plumbing Co Ltd [1966] 2 QB 746. [1] 7. Secondly, the claim of the judgment creditor as garnishor is subject to any rights and equitable interests which existed over the particular debt owed to the judgment debtor before attachment through the garnishee procedure: Blacktown Concrete referring to Norton v Yates [1906] 1 KB 112; In Re Combined Weighing & Advertising Machine Co (1889) 43 Ch D 99 and Relwood. Thus, if a third party has a valid lien or charge over the debt prior to the making of the garnishee order, the priority of that claim must be given effect by the Court: MG Charley Pty Ltd v FH Wells Pty Ltd [1963] NSWR 22. However, a floating charge does not have any priority over the debt unless and until it crystallises: Relwood at 201-202; MG Charley at 28; Robson v Smith [1895] 2 Ch 118; Evans v Rival Granite Quarries Ltd [1910] 2 KB 979. 8. A third party may be given leave to appear on the motion and assert a claim to the debt: Wentworth v Rogers [2003] NSWSC 472. 9. None of the parties suggested that the Court's ability to deal with the claims was affected by the limited equitable jurisdiction of this Court (see s 134 of the District Court Act 1973 (NSW)). 10. Section 123 of the CPA requires payment under a garnishee order to be made in accordance with the order and to the judgment creditor specified in the order. Here, although the garnishee order required Mrs Slattery to pay the debt to the plaintiff, Judge Wilson SC ordered her to pay it into Court. The basis for this seems to be that the solicitors for Mr Fordyce [2] had asked Mrs Slattery to pay the judgment debt owed by her to Mrs Fordyce rather than to Mr Fordyce. 11. As the proceedings themselves did not concern the right of a party to a fund (cf Uniform Civil Procedure Rules 2005 (NSW) (UCPR), subr 25.3(3)) or arise under the Trustee Act 1925 (NSW) (cf UCPR Pt 55) it was open to determine any claims to the debt owed by Mrs Slattery without any payment into Court: see, for example UCPR subr 39.41(2). However, as the money has been paid into Court, in order for any competing claims to be agitated it is necessary to take into account the competing claims in determining what orders should be made in relation to the funds held by the Court. The Fordyce claims 1. Both Mr Fordyce and his wife claim that the money should be paid to Mrs Fordyce. In brief, they claim that they entered into a loan agreement pursuant to which Mr Fordyce owes Mrs Fordyce money and has secured the payment of that amount by the grant of a personal security. Secondly, they claim that, by deed dated 15 March 2019, Mr Fordyce assigned any amount owing to him to Mrs Fordyce (2019 Assignment). Thirdly, they say that Mr Fordyce further assigned moneys owing to him by deed dated 8 April 2021 (2021 Assignment). Notice of the 2021 Assignment was given to Mrs Slattery pursuant to s 12 of the Conveyancing Act 1900 (sic) but no notice was ever given of the 2019 Assignment. 2. The third argument must be rejected because any right that arose by operation of an assignment in April 2021 post-dated the garnishee order and so cannot defeat any rights of the judgment creditor that arose under that order. 3. The loan agreement relied on by the Fordyces was dated 8 November 2016. [3] The primary obligation of Mr Fordyce under that agreement was to repay the "secured money" on the repayment date (cll 7.1 to 10). "Secured money" was the "principal money" and accrued interest (cl 1). "Principal money" included all money owed by Mr Fordyce to Mrs Fordyce and all interest accrued (cl 1). The "repayment date" was "on demand by the Lender" (cl 1). 4. By cl 5, it was noted that Mr Fordyce's obligations were secured by "the collateral security" and any such other agreement as he may enter into (cl 1). This was defined to include the "General Security Agreement". 5. A deed entitled "General Security Agreement" [4] was entered into between Mr and Mrs Fordyce on 8 November 2016. Under that deed, Mr Fordyce agreed to grant to Mrs Fordyce a PPSA security interest over all PPSA Personal Property and a fixed charge over all other property to secure amongst other things, the payment of the "Secured Money": cl 2.1. 6. "Secured Money" meant all money that Mr Fordyce was, or at any time, may become actually or contingently liable to pay to or for the account of Mrs Fordyce (cl 1.1(38)). 7. A "PPSA Security Interest" is defined in the General Security Agreement to have the same meaning as "security interest" under the Personal Property Securities Act 2009 (Cth) (PPSA). Section 12 of that Act provides that a "security interest" is an interest in personal property provided by a transaction that, in substance, secures payment or performance of an obligation. It includes a fixed charge, a floating charge, a pledge and an assignment: s 12(2). 8. "PPSA Personal Property" is defined in the General Security Agreement to include all of Mr Fordyce's present and after-acquired property in which Mr Fordyce could be a grantor of a PPSA Security Interest: cl 1.1(30)(a). 9. "After acquired property" is defined to have the same meaning as in the PPSA where it means personal property acquired by the grantor after a security agreement is made: s 10. From this it appears that the nature of the security given in respect of after-acquired property was that of a floating charge. 10. On 14 March 2019 the security interest given under the General Security Agreement was registered. [5] 11. On 15 March 2019 Mr Fordyce, PMFPL Pty Ltd and Mrs Fordyce entered into the 2019 Assignment. [6] 12. The Recitals to the deed which effected the assignment contain a number of facts relating to the earlier agreements between the parties and the litigation involving the Ho parties and litigation concerning Mrs Slattery and companies related to her. 13. Recital I states that "In the light of the adverse judgment against Paul (Fordyce) and the Company in the Ho Proceedings Paul and the Company acknowledge that they will be unable to repay the debts they owe to Louise (Mrs Fordyce)". Recital J states "(t)herefore Paul and the Company have agreed to enter into this Deed of assignment with Louise (Mrs Fordyce) to reduce their indebtedness to her". 14. These recitals have no impact here. No question of construction of the deed arises and the rule that recitals to a deed can operate as an estoppel (Baker v Dewey (1823) 1 B & C 704 at 707; 107 ER 259 at 260) only applies in actions between parties to the deed and those claiming through them: Carpenter v Buller (1841) 8 M & W 209 at 212; 151 ER 1013 at 1014; JD Heydon, Heydon on Contract, (Thomson Reuters) at [6.70]. 15. The operative provisions of the Deed are: "1. Paul hereby assigns to Louise: a. the debts owed by Slattery and the Slattery Companies to Paul in respect of the Slattery Proceedings including but not limited to the judgment amount awarded to him on 10 July 2017 in the Slattery First Instance Case; b. the costs awarded in the judgment of 12 October 2015 in the Slattery First Instance Case, as varied in the Slattery Appeal; c. the costs awarded to Paul in the Slattery Appeal; d. the costs awarded to Paul in any other proceedings between Paul and Slattery and the Slattery companies; and e. all assets owned by Paul whatever and wherever they may be." 1. It is convenient to deal first with the argument that there was a "PPSA Security" which attaches to the judgment debt and has priority over the other claims. 2. The first question that arises in this respect is whether there was any debt to Mrs Fordyce at all. I find that there was not. First, the evidence that Mrs Fordyce had loaned any money to her husband was vague, general and unsupported by any contemporaneous document (indeed, subject to what follows, by any document at all). If there had been any money paid by Mrs Fordyce to or for Mr Fordyce by way of loan it would have been within the power of either or both of them to produce some record of it. However, no such record was put into evidence and I infer that there is no record that could assist Mrs Fordyce's claim in this respect. For those reasons, I give little weight to the assertions of loans and I am not satisfied on the balance of probabilities that there was any loan to Mr Fordyce or, for that matter, to the second defendant. 3. Secondly, and in any event, although the recitals to the Deed of Assignment refer to "debts owed to" Mrs Fordyce, if there was any money loaned under the loan agreement it was only repayable on demand and there is no evidence of any demand. Mrs Fordyce argued that there was a demand in the Deed of Assignment but the document does not, on its face, either include or constitute any demand. Both Mr and Mrs Fordyce swore affidavits in the application and neither of them deposed to any demand. I find that there has been no demand and that no money is owing under the loan agreement. 4. The immediate consequence of that finding is that the security over any moneys loaned under the agreement has not attached to any property of Mr Fordyce. For that reason, neither the loan agreement nor the General Security Agreement, provides Mrs Fordyce with any interest over the judgment debt owed by Mrs Slattery, that has any priority over the rights of the judgment creditor. 5. I turn then to the assignment. 6. The plaintiffs' first argument in this respect is that there could be no assignment in equity because, at the date of the assignment, Mr Fordyce had no current right, title or interest in the judgment debt: Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 at 18 (McTiernan J). They argued that this was because that debt was the subject of an appeal that was not determined until 12 April 2019. [7] The plaintiff did not refer to any authority or principle in support of the proposition that a judgment debt owed under an order made in the Local Court is not a present right by reason only of there being an appeal brought from that judgment and I can see none so reject the argument. 7. The plaintiff also argues that, even if the assignment is valid, it is subject to the pre-existing claims of the Ho parties, in particular, the judgment against Mr Fordyce in their favour entered on 29 April 2016. However, the plaintiffs did not explain how the right that arises under a judgment given in a different court, between different parties, attaches to the judgment debt against Mrs Slattery. 8. The Fordyces argue that, absent compliance with s 12 Conveyancing Act 1919 (NSW) (by virtue of the lack of notice to Mrs Slattery), there was an assignment in equity regardless of whether consideration is required or not. First, payment down of a debt is sufficient consideration in equity: Norman at 31 (Windeyer J). That may be accepted, but the principle does not apply because there was no indebtedness here. 9. Secondly, they argue that, in any event, consideration is not necessary. In this respect, they rely on Goodridge v Macquarie Bank Ltd [2010] FCA 67; 265 ALR 170 at [172] (Rares J), which they argue is consistent with the following passage of the reasons of Windeyer J in Norman at [32]: "It seems to me that, in principle, so far as a deed has any efficacy in connexion with equitable assignments, it is not that a deed takes the place of valuable consideration where that is needed to attract the aid of equity. Rather it is that, in cases where value is not so required but a clear expression of intention is, the delivery of a deed couched in terms of present gift manifests, in the best possible way, the intention of the assignor to make an immediate and irrevocable transfer." 1. Historically, there could be no assignment at law of a legal chose in action. That situation was amended by s 25(6) of the Judicature Act 1873, the local form of which is s 12 of the Conveyancing Act. I note that no party argued that the law of Queensland (where the Fordyces currently reside) applied or that it would, in any event make any difference: see Property Law Act 1974 (Qld), s 199. Section 12 of the Conveyancing Act provides: Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same without the concurrence of the assignor: Provided always that if the debtor, trustee, or other person liable in respect of such debt or chose in action has had notice that such assignment is disputed by the assignor or anyone claiming under the assignor, or of any other opposing or conflicting claims to such debt or chose in action, the debtor, trustee or other person liable shall be entitled, if he or she thinks fit, to call upon the several persons making claim thereto to interplead concerning the same, or he or she may, if he or she thinks fit, pay the same into court under and in conformity with the provisions of the Acts for the relief of trustees. (Emphasis added) 1. As there was no written notice given to Mrs Slattery of the first assignment as required by s 12 of the Conveyancing Act there can only have been an assignment in equity. 2. As the Fordyces submitted, equity does recognise voluntary assignments of legal choses in action, such as debts. However, the passage in Norman they rely on does not deal directly with that question. It certainly does not answer the critical question here, namely, what precisely is required for there to be a valid equitable assignment. That is not a question that admits of one simple answer and depends to a large extent on the nature of the chose said to have been assigned. 3. The starting point is Milroy v Lord (1862) 4 De GF & J 264, where Turner LJ explained, at 274, that: "… in order to render a voluntary settlement valid and effectual, the settler must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him … there was no equity in this Court to perfect an imperfect gift." 1. The simplicity of expression in this passage conceals its complexity. As Weinberg J said in Marchesi v Apostoulou [2006] FCA 1122; 235 ALR 136 at [14], what constitutes "everything which … was necessary" was the subject of considerable discussion, and confusion, over many years. [8] That discussion has resulted in the position in Australia that a gift will be recognised in equity where the donor has done all that is necessary to render the gift binding on himself, or to arm or equip the donee with the means of putting the transfer beyond the donor's recall or intervention: Corin v Patton (1990) 169 CLR 540 at 558, 563 - 570, 582 - 583. 2. The only step taken by Mr Fordyce to put the transfer of his interest in the judgment debt beyond recall was the delivery of an executed deed. The delivery of an executed deed can constitute the clear intention of the assignor to make an immediate and irrevocable transfer. However, that does not necessarily satisfy the requirements for an equitable assignment as explained in Corin. 3. What was required for the assignment to have been actually beyond recall was the giving of express notice in writing to Mrs Slattery under s 12 of the Conveyancing Act. The deed here envisaged such notice by requiring Mr Fordyce to "promptly execute a notice of assignment substantially in the form of the Notice appearing in Schedule 1 to this Deed". The apparent purpose of that was to enable Mrs Fordyce to serve it and thereby be able to direct Mrs Slattery to satisfy the judgment debt by paying her rather than her husband. 4. However, notice under s 12 may be given by either the assignor or assignee: Anning v Anning (1907) 4 CLR 1049 at 1059; Holt v Heatherfield Trust Ltd [1942] 2 KB 1; Norman at [29]. Thus, the means to perfect the gift were in the hands of Mrs Fordyce, regardless of whether her husband himself signed the notice attached to the deed or otherwise sent a notice to Mrs Slattery. For that reason, even absent consideration and notice to Mrs Slattery, the 2019 Assignment was effective to create an equitable interest in the judgment debt. 5. The final question that needs to be determined is whether the deed effecting the 2019 Assignment is voidable under s 37A of the Conveyancing Act. The section provides: (1) Save as provided in this section, every alienation of property, made whether before or after the commencement of the Conveyancing (Amendment) Act 1930, with intent to defraud creditors, shall be voidable at the instance of any person thereby prejudiced. … 1. The leading authority on this provision is Marcolongo v Chen (2011) 242 CLR 546. The effect of that decision was summarised as follows by the Full Court of the Federal Court in Zreika v Royal (2019) 271 FCR 65 at [88]: "The relevant principles in relation to the elements of s 37A of the Conveyancing Act and, in particular, the intent to defraud creditors, may be briefly stated. The High Court considered s 37A of the Conveyancing Act in Marcolongo v Chen. French CJ, Gummow, Crennan and Bell JJ referred to the history of s 37A and its predecessor, the Statute 13 Eliz. 1 c. 5. (the Elizabethan Statute). Their Honours made the point on two occasions in the course of their reasons that s 37A, like the Elizabethan Statute before it, should receive a liberal construction in effecting the purpose of suppressing fraud (at [20] and [58]). Section 37A refers to an intent to defraud creditors and means delay, hinder or [otherwise] defraud creditors as the Elizabethan Statute had provided (at [19]). Whether there is an intent to defraud creditors involves a question of fact concerning actual knowledge and is to be distinguished from the purely equitable doctrine of constructive notice or constructive knowledge (at [26]–[28]). However, it is not necessary to prove a desire to cheat or swindle those prejudiced. Furthermore, whilst it is necessary to show the existence of an intention to hinder, delay or defeat creditors, it is not necessary to show that the debtor wanted creditors to suffer a loss or that the debtor had a purpose of causing loss (at [32]). Finally, it is not necessary that the intent to defraud creditors be the sole or predominant intention (at [57])." 1. Leaving aside any question of jurisdiction, which was not addressed by the parties, I am not satisfied on the evidence that there was any intention on the part of Mr Fordyce to defraud his creditors in the relevant sense by entering into the deed with his wife. Apart from the fact that there was ongoing litigation with the Ho parties at the time of the assignment, there is insufficient basis for me to conclude that that was his intention. 2. Two further matters should be noted. First, although I have determined the Fordyce claims on the basis that the assignment was voluntary, that was because the Fordyces bore the onus of establishing their claim on the balance of probability and failed to do so. Here, the plaintiff bears the onus of proof and has not established that the assignment was voluntary. For that reason, I do not include the voluntary nature of the assignment as part of my reasons for rejecting the s 37A argument. I would add, however, that that would have made no difference. 3. Secondly, and in any event, the issues under consideration, while complex, were dealt with on affidavit alone and I am not satisfied that the issue under s 37A was sufficiently advanced in order to give Mr Fordyce a fair opportunity to deal with it. In that respect, as he was a practising solicitor in New South Wales for many years prior to his retirement to North Queensland, I give little weight to the fact that he was self-represented. While the content of procedural fairness changes with the circumstances, the one essential is that the person concerned should have a reasonable opportunity of presenting his case: Russell v Duke of Norfolk [1949] 1 All ER 109, 118; Kioa v West (1985) 159 CLR 550 at 585 (Mason J), 612 (Brennan J). That includes not only the opportunity to make a positive case, but also to answer the case put against him or her: Minister for Immigration & Border Protection v WZARH (2015) 256 CLR 326 at [52]. 4. For those reasons, I find that Mrs Fordyce is entitled the sum paid into Court by Mrs Slattery. 5. In recognition of the history between the parties and the possibility of an application for leave to appeal from this decision, if leave is required, I will stay my order and will also deal briefly with Mrs Slattery's claim. Mrs Slattery's claims 1. Mrs Slattery claims that she has two claims against Mr Fordyce that should reduce the money she is liable to pay under the garnishee order (and so, in effect, that she should get back from the money she did pay into court). 2. Her first claim is for $21,240 being the money for legal expenses that she paid to the second defendant's trust account over and above amounts that she paid directly to counsel. Her second claim is in respect of costs orders made against Mr Fordyce in Supreme Court proceedings involving a number of matters including the lapsing of a caveat lodged by Mr Fordyce and applications by him to wind up two companies related to her. 3. In respect of the first claim, Mrs Slattery relies on records showing payment to a trust account. [9] However, the payer recorded in those documents is not Mrs Slattery, but her companies. Leaving that to one side, the issue of the costs payable by Mrs Slattery (including any amounts paid by her on account of costs) was determined by her Honour, Magistrate Pierce in the Local Court in her judgments dated 18 May 2017 [10] and 10 July 2017. In the first of those judgments, her Honour dealt with Mrs Slattery's claims about payment on account of counsel fees. [11] In those circumstances, there remains no existing claim available to Mrs Slattery. 4. Mrs Slattery's second claim suffers from a number of difficulties. First, in relation to the costs order following the dismissal of Mr Fordyce's caveat claim [12] , even assuming that Mrs Slattery (rather than one of her companies which were also parties) did pay costs, there is insufficient connection between that order and the costs judgment to interfere with the garnishee order: cf. Hale v Victoria Plumbing Co at 751. Secondly, the winding up and related proceedings were brought against Mrs Slattery's companies, from which I infer that the costs orders made in those proceedings were not made in her favour, and conclude that she cannot have a claim under them against Mr Fordyce. 5. Finally, Mrs Slattery says in her affidavit (at [27]) that there are currently "two other matters still on foot in the Supreme Court of NSW between Mrs Slattery and Fordyce which if successful, Mrs Slattery will have other costs orders against Fordyce". That may well be, however, any liability under those costs orders will post-date the garnishee order and, as far as may be ascertained from the evidence, have no connection to the relevant judgment debt so can have no impact on the garnishee order. 6. For those reasons I would have rejected Mrs Slattery's claims. 7. There will be no order as to costs. First, as a self-represented party, Mr Fordyce is not entitled to an award of costs. Secondly, the argument concerning the amounts paid by Mrs Slattery into Court have been largely bought about by the failure by either Mr or Mrs Fordyce to notify her or the plaintiffs of what I found to be a prior existing claim. Orders 1. I will make the following orders: 1. The amount of $63,389.40 held in Court be paid to Louise Aileen Fordyce. 2. These orders are stayed pending any appeal or application for leave to appeal from them. ********** Endnotes 1. This case relied on the authority of Morgan & Son Ltd v Martin Johnson & Co Ltd [1949] 1 KB 107 which characterised the claim as an equitable set-off rather than a counter claim (as to which, see Heydon, Leeming and Turner, Meagher, Gummow & Lehane's Equity Doctrine & Remedies (5th ed, 2015, LexisNexis online) at [39-070]. 2. Acting in the matter in which there is judgment against Mrs Slattery and not in this matter. Mr Fordyce appeared for himself in the proceedings before this Court. 3. Ex PMF-4, p 76. 4. Ex PMF-4, p 97. 5. Ex PMF-4, p 141. 6. Ex PMF-4, p 143. 7. Ex PMF-4, p 152. 8. See also Heydon, Leeming and Turner, Meagher, Gummow & Lehane's Equity Doctrine & Remedies (5th ed, 2015, LexisNexis online) at [6-075]–[6-155]; Young, Croft and Smith, On Equity (Lawbook Co) at [10-310]. 9. Ex RS-1, p 242ff. 10. Ex RS-1, pp 104-139. 11. See Ex RS-1, pp 135-137. 12. Ex RS-1, pp 258-262. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 October 2021