Pogorzelska v Bechara [2015] NSWSC 92

Supreme Court New South Wales

Medium Neutral Citation: Pogorzelska v Bechara [2015] NSWSC 92 Hearing dates: 16 February and 17 February 2015 Decision date: 17 February 2015 Jurisdiction: Equity Division Before: McDougall J Decision: Order that first defendant: (1) not enforce against trust assets the judgment recovered by her against trustee; and (2) pay into court any money paid to her under garnishee order against trust bank accounts. Catchwords: EQUITY – trustees - indemnity for litigation costs - where solicitor for trustee and executor brought proceedings in District Court to recover costs owing from both - where default judgment obtained and garnishee order issued against trust assets - where plaintiff asserts beneficial interest arising from agreement in those trust assets - whether judgment debt can trump the plaintiff's asserted beneficial entitlement to trust assets - where separate proceedings allege that the trustee and executor had acted improperly in their execution of trust obligations - whether appropriate to restrain enforcement of the garnishee order while those proceedings pending - where possible outcome of those proceedings that trustee and executor will be denied recourse to trust funds - relevance of trust deed clause granting trustees a right of indemnity PROCEDURE – judgments and orders - contempt - where bank faced with risk of being required to simultaneously obey inconsistent orders from District Court and Supreme Court - where likely outcome that it will be in contempt of one of those courts - whether alternative order available that will maintain status quo while avoiding risk of contempt Cases Cited: Bank of New South Wales v Coleman (1898) 14 WN (NSW) 155 Roberts v Death (1881) 8 QBD 319 Category: Procedural and other rulings Parties: Nina Pogorzelska (Plaintiff) Maria Bechara (First Defendant) Westpac Banking Corporation Limited (Second Defendant) Representation: Counsel: J E Armfield (Plaintiff) P Holmes (Second Defendant)