STAVRIANOS and ORS v COLES MYER LTD [1995] NSWCA 452

STAVRIANOS v COLES MYER LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and SHELLER JJA 28 June 1995, 28 June 1995

[1995] NSWCA 452

Assignment of debt for 100 cents in the dollar — deed of assignment — by laws of a co-operative society FACTS Appellant challenged a finding in favour of a valid deed of assignment made for 100 cents in the dollar on the grounds that the deed when read with the by-laws of the Co-operative society was not permissible. HELD (1) Deed is upheld for reasons of trial judge. ORDERS (1)Appeal dismissed with costs

Meagher JA This matter involved a challenge by some parties who were debtors to a Co-operative Society and the debt in which they were involved was assigned to Coles Myer Ltd, which paid a hundred cents in the dollar for it.

It is alleged by the appellant that in the light of the terms of the deed of assignment, when taken in conjunction with the by-laws of the Co-operative Society, that it was not permissible to assign the debt. It will be observed that Coles Myer paid 100 cents in the dollar.

In those circumstances, the debt seems certainly to be assignable and I would, for my part, be content to depend on the reasons of his Honour, the trial judge.

A slightly more complicated position arises in the present context where the assignment is for some sum less than 100 cents in the dollar, though in my view his Honour's reasons would apply even in that case.

I would, therefore, propose that the appeal be dismissed with costs.

Handley JA I agree that this appeal fails. However, speaking for myself, I would wish to reserve future consideration a case where the assignment by the Co-operative Society was for less than 100 cents in the dollar.

Sheller JA I likewise would wish to reserve the position for consideration, if it arises in the future, where the assignment was for less than 100 cents in the dollar. Subject to that reservation I agree that the appeal should be dismissed with costs for the reasons that were given by Justice Giles at first instance.