Supreme Court New South Wales

• Medium Neutral Citation: Dlakic t/as Johnston Vaughan Solicitors v Despot [2014] NSWSC 1203
• Hearing dates: 25/08/2014
• Decision date: 25 August 2014
• Jurisdiction: Common Law
• Before: Campbell J

Decision

(1)Stelli Pty Limited ACN 131 045 693 pay to Amil Dlakic trading as Johnston Vaughan Solicitors all moneys owed by it to Ranko Despot not exceeding the amount of $167,833.42 outstanding under the judgment of this Court in matter 2013/00044732.

(2)Westpac Banking Corporation to pay to Amil Dlakic trading as Johnston Vaughan Solicitors all moneys owed by it to Ranko Despot not exceeding the amount of $163,833.42 outstanding in the judgment of this Court in matter 2013/44732.

• Catchwords: PROCEDURE - civil - garnishee orders
• Legislation Cited: Civil Procedure Act 2005 (NSW); Uniform Civil Procedure Rules 2005 (NSW), r 39
• Category: Interlocutory applications
• Parties: Amil Dlakic t/as Johnston Vaughan Solicitors (Plaintiff); Ranko Despot (Defendant)
• Representation: Counsel: Solicitors: JW Conomos (Plaintiff)
• File Number(s): 2013/44732

EX TEMPORE Judgment

1 I have before me two applications for garnishee orders brought under r 39.34 Uniform Civil Procedure Rules 2005 (NSW). The judgment debt, the subject of the applications, relates to an order entered in this Court on 13th February 2013 in favour of the applicant in the sum of $181,053.98, in respect of legal fees due to the applicant for acting for Mr Ranko Despot in proceedings in this Court.

2 In support of the applications Mr Conomos has read a number of affidavits of Mr Dlakic. There are two affidavits of 22nd August 2014 which are in the form of affidavits of debt. They establish to my satisfaction that of the judgment debt and interest under the Civil Procedure Act 2005 (NSW) and Rules, some small amounts have been paid, leaving a balance of $167,833.42.

3 There is a longer affidavit of Mr Dlakic sworn 24 August 2014. Mr Dlakic recounts the history of the matter and says his instructions to act were terminated in or about May 2011. From that affidavit I find, by reference in particular to [16] and the documents annexed in support of that paragraph, that there is a strong suggestion that Mr Despot has been divesting himself of his substantial real property assets.

4 The second matter of note is that there are bankruptcy proceedings pending in the Federal Circuit Court relating to Mr Despot in which Mr Dlakic is a supporting creditor. Those proceedings are listed for hearing on 22 October 2014.

5 The third matter of note is that Mr Dlakic has learnt that certain moneys are due to be paid to Mr Despot soon under orders made by this Court in its Equity Division (See decision of Ball J in Despot [2014] NSWSC 112). From the evidence in Mr Dlakic's affidavit, the final sum due is $150,726. That money is payable by Westpac Banking Corporation Limited, according to Mr Dlakic's understanding of the situation, on behalf of a company called Stelli Pty Limited. It is unnecessary to go into the details further.

6 It seems to me that, on the basis of that evidence, Mr Dlakic has made out a prima facie case for the issue of the garnishee orders as a matter of some urgency. The urgency relates to the consideration that the solicitor acting for the Westpac Bank has informed Mr Dlakic and he verily believes that those moneys will probably be paid on Tuesday 26th August 2014.

7 These applications, which I have made returnable instanter, have not been served on the judgment debtor or the proposed garnishees and are being dealt with ex parte. In this regard I record that r 39.34 is in the following terms:

39.34 Application for garnishee order

(1) An application for a garnishee order in respect of a judgment is to be made by way of notice of motion.

(2) Unless the court orders otherwise, a notice of motion under this rule:

(a) may be dealt with in the absence of the parties, and

(b) need not be served on the judgment debtor or the proposed garnishee.

(3) The application must indicate the extent (if any) to which the judgment debt has been satisfied under any writ of execution, garnishee order or charging order issued by the court.

8 It seems to me that the purpose of the rule is self-evidently that notice to the judgment debtor, or perhaps to the proposed garnishee, could defeat the purpose of the rules in providing for garnishee orders to enforce the judgments of the Court. I am satisfied that Mr Dlakic has complied with the provisions of sub rule 3 of r 39.34.

9 One matter of concern that I had was that making this order may give Mr Dlakic an advantage in the bankruptcy proceedings. Mr Conomos has submitted that the existence of those proceedings does not detract from my ability to make the order. I accept that submission.

10 From the affidavit of Mr Dlakic I am satisfied that the debt due to him, supported by a judgment, is the substantial debt the subject of those proceedings. There is a lesser debt of $18,000 claimed by a person name Mr Kosovic. So far as that is concerned, before making this application Mr Dlakic swears that he has contacted the solicitor acting for Mr Kosovic in the bankruptcy proceedings and informed him that he intended to make today's application. On inquiry he was informed no similar application would be made on behalf of Mr Kosovic because, as his solicitor, Mr James Merewether, informed him, Mr Kosovic does not wish to incur any further legal costs.

11 Should there be any undue advantage to Mr Dlakic in relation to the bankruptcy proceedings, I am satisfied that the appropriate place for that to be sorted out legally is the Federal Circuit Court in due course. Given the history of Mr Despot's conduct which, as I have said, is strongly suggestive of him taking steps to divest himself of assets, presumably to defeat his creditors, I think it is appropriate to exercise of discretion to accede to the applications made today.

12 Accordingly I make the following orders:

(1) Stelli Pty Limited ACN 131 045 693 pay to Amil Dlakic trading as Johnston Vaughan Solicitors all moneys owed by it to Ranko Despot not exceeding the amount of $167,833.42 outstanding under the judgment of this Court in matter 2013/00044732.

(2) Westpac Banking Corporation to pay to Amil Dlakic trading as Johnston Vaughan Solicitors all moneys owed by it to Ranko Despot not exceeding the amount of $163,833.42 outstanding in the judgment of this Court in matter 2013/44732.

13 These orders may be taken out forthwith.

**********

Decision last updated: 29 August 2014