Megna & anor v Marshall & anor [2005] NSWSC 1347

New South Wales Supreme Court

CITATION : Megna & anor v Marshall & anor [2005] NSWSC 1347

HEARING DATE(S) : 22 November 2005

JUDGMENT DATE : 22 November 2005

JUDGMENT OF : Brereton J

DECISION : Paragraphs [10], [11], [12].

CATCHWORDS : EQUITY – Remedies – Injunctions – Asset Preservation Order – in aid of potential cross-claim for contribution - in and of proposed third party proceedings under Family Law Act 1975 (Cth) to set aside financial agreement – against third party.

Family Law Act 1975 (Cth), Part 8B, s 90K LEGISLATION CITED : Defamation Act 1974 (NSW), s 7A Conveyancing Act 1919 (NSW), s 37A

Re Wakim; Ex parte McNally (1999) 198 CLR 511 CASES CITED : Cardile v LED Builders Pty Limited (1999) 198 CLR 380

Michael Megna (first plaintiff) Russell James Lloyd (second plaintiff) PARTIES : David John Marshall (first defendant) Richard Martin Tory (second defendant)

FILE NUMBER(S) : SC 10261/04

J Wheelhouse (plaintiff) COUNSEL : D Marshall (in person) (first defendant) A T S Dawson (second defendant)

Etheringtons Solicitors (plaintffs) SOLICITORS : Osborne Bricknell Howell (second defendant)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BRERETON J

Tuesday 22 November 2005

10261/04 Michael Megna & Anor v David John Marshall & Anor

JUDGMENT (ex tempore) 1 HIS HONOUR: By notice of motion filed in this Court on 14 November 2005, the second defendant, Richard Martin Tory, seeks an order restraining the first defendant, David John Marshall, and his wife Shirley Irene Marshall, from in effect taking any step to carry into effect what appears to be a financial agreement entered into between them under Part 8B of the Family Law Act 1975 (Cth). That financial agreement was entered into on 3 September this year in circumstances where, after protracted, extensive and hard fought defamation proceedings, a jury had returned verdicts for the plaintiff, Mr Megna, against both defendants, Mr Marshall and Mr Tory, pursuant to a Defamation Act 1974 (NSW), s 7A trial, finding that numerous imputations alleged by Mr Megna were conveyed by the matter complained of and were defamatory of Mr Megna.