Kevern v Marshall [2004] NSWSC 300

New South Wales Supreme Court

CITATION : Kevern v Marshall [2004] NSWSC 300 HEARING DATE(S) : 15/04/04 JUDGMENT DATE : 15 April 2004

JUDGMENT OF : Gzell J DECISION : Motion dismissed with costs.

CATCHWORDS : PROCEDURE - Supreme Court procedure - Notice of motion in the proceedings to enforce orders of the court - Only order made was vacation of earlier costs orders - Settlement called for defendant to pay upon full compliance by plaintiff to vest title and possession to chattels in defendant - Failure of complete compliance - No payment by defendant - No undertaking to do so embodied in court order - Whether appropriate to enforce settlement by notice of motion in the proceedings under the Supreme Court Act 1970, s 63 LEGISLATION CITED : Supreme Court Rules 1970 Supreme Court Act 1970 Abigroup Ltd v Abignano (1992) 39 FCR 74 Spindler v Balog (1959) 76 WN (NSW) 391 CASES CITED : Biba Ltd v Stratford Investments Ltd [1973] Ch 281 Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510 Roberts v Gippsland Agricultural & Earthmoving Contracting Co Pty Ltd [1956] VLR 555 Phillips v Walsh (1990) 20 NSWLR 206 PARTIES : Jeff John Kevern - Plaintiff Garry Marshall - Defendant FILE NUMBER(S) : SC 4544/99 COUNSEL : Mr J Fellows (Solicitor) Mr A Radojev SOLICITORS : Adrian & Fellows Solicitors

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

THURSDAY 15 APRIL 2004

4544/99 JEFF JOHN KEVERN v GARRY MARSHALL

EX TEMPORE JUDGMENT 1 Before the court is a notice of motion filed by the plaintiff seeking to enforce orders of the court made in the proceedings on 28 February 2001. 2 The Supreme Court Rules 1970, Pt 42 r 2 deals with enforcement of orders for the payment of money. It does not create substantive rights in the parties that do not otherwise accrue from the orders (Abigroup Ltd v Abignano (1992) 39 FCR 74 at 85). Here the only order made was to vacate all previous orders as to costs. 3 An undertaking to pay money is not a judgment or order and does not fall under the rule (Spindler v Balog (1959) 76 WN (NSW) 391 at 393). An undertaking given to the court and embodied in an order, even as to payment of money, is enforceable as a judgment or order like an injunction by committal under r 6 (Biba Ltd v Stratford Investments Ltd [1973] Ch 281 at 287). Here no undertaking was given to the court, let alone it being embodied in an order of the court.