Atidote Pty Ltd t/as Harcourts, The Property People Sydney v Mohammad Najjar as receiver & manager of Trinity Investments (NSW) Pty Ltd (receiver & manager appointed) [2024] NSWSC 206

Supreme Court New South Wales

Medium Neutral Citation: Atidote Pty Ltd t/as Harcourts, The Property People Sydney v Mohammad Najjar as receiver & manager of Trinity Investments (NSW) Pty Ltd (receiver & manager appointed) [2024] NSWSC 206 Hearing dates: 15 February 2024 Date of orders: 2 April 2024 Decision date: 02 April 2024 Jurisdiction: Equity - Duty List Before: Slattery J Decision: The parties are directed to bring in short minutes of order to give effect to these reasons. Catchwords: JUDGMENTS AND ORDERS - enforcement – garnishee order – attachment of debts – Civil Procedure Act 2005, s 117 the plaintiff, a managing agent holds funds collected from the tenants of the second defendant, the owner of units in a residential and commercial building, on trust for the second defendant pursuant to a management agency agreement – the owners corporation of the strata plan of the building, the third defendant, obtains a money judgment in the District Court against the second defendant and serves a garnishee notice on the second defendant seeking to attach debts owed by the plaintiff to the second defendant pursuant to the management agreement – the plaintiff pays funds in its possession at the time of service of the garnishee order and thereafter to the third defendant – the second defendant defaults to its mortgagee and the mortgagee appoints a receiver, the first defendant – the receiver contends that the plaintiff wrongly paid monies under the garnishee order to the third defendant after the date of service of the garnishee order – whether the third defendant is entitled to retain the monies so received or whether those monies should be repaid to the plaintiff – construction of the expression "due and payable". Legislation Cited: Civil Procedure Act 2005, ss 117, 124A, 124(1)(b) Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 Income Tax Assessment Act 1936, s 218 Personal Property Securities Act 2009 (Cth), s 8(1)(f)(ii) Property and Stock Agents Act 2002, ss 86(1), 88 Strata Schemes Management Act 2015, s 86(2A) Trustee Act 1925, s 63 Uniform Civil Procedure Rules 2005, rr 39.1, 39.34 to 39.43A Cases Cited: Bagley v Winsome and National Provincial Bank (1952) 2 QB 236 Bank of New South Wales v Coleman (1898) 14 WN (NSW) 155 Breen v Doyle (1920) 37 WN (NSW) 258 Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226 Clyne v Commissioner of Taxation (1981) 150 CLR 1 David Securities Pty Ltd v Commonwealth Bank of Australia (1991) 175 CLR 353 Dunlop & Ranken Ltd v Hendall Steel Structures Ltd [1957] 3 All ER 344 MG Charley Pty Ltd v FH Wells Pty Ltd [1963] NSWR 22 Neustadt v Sammon (1915) 32 WN (NSW) 32 Norton v Yates [1906] 1 KB 112 O'Driscoll v The Manchester Insurance Committee [1915] 3 KB 499 Plunkett v Barclays Bank Ltd [1936] 2 KB 107 Pogorzelska v Bechara [2015] NSWSC 92 Roberts v Death (1881) 8 QBD 319 Secure Funding Pty Ltd v Bettini [2011] NSWSC 557 Webb v Stenton (1883) 11 QBD 518 Wentworth v Rogers [2003] NSWSC 472 Category: Principal judgment Parties: Plaintiff: Atidote Pty Ltd t/as Harcourts, The Property People Sydney First Defendant: Mohammad Najjar as receiver & manager of Trinity Investments (NSW) Pty Ltd (receiver & manager appointed) Second Defendant: Trinity Investments (NSW) Pty Ltd (receiver & manager appointed) Third Defendant: Strata Plan 85545 Representation: Counsel: Plaintiff: L. Clarke First and Second Defendants: M. Collins Third Defendant: C. Stomo