Case: Esber v Massih [2006] NSWSC 321
Outcome: cited
On 26 April 2006 His Honour Justice Hall of that Court published reasons for his decision that the Plaintiff had an interest in the development property and was entitled to 50% of the profits on sale. His Honour granted leave to the parties " to bring in short minutes of orders to give effect to the orders proposed ": Esber v Massih [2006] NSWSC 321. That was done by way of orders made on 8 March 2007, including an order that " there be an account of such profits " and an order that the " Defendant pay the Plaintiff's costs of the proceedings as assessed or agreed ". 11 A Certificate of Determination of Costs dated 15 October 2007 certified that the present Applicant was to pay costs in the sum of $77,498.96. 12 On 8 May 2008 a Notice of Motion was filed in the Supreme Court seeking leave to file and serve a Cross-Claim or seeking a variation of the judgment of Hall J by way of a declaration that " the defendant is entitled to contribution from the plaintiff to half of any losses from the development and sale of the property ". An Amended Notice of Motion was resolved by Acting Justice Bryson on 31 July 2008 when His Honour concluded in relevant part: [4] The order which the trial Judge made on that subject was, obviously in its terms, interlocutory; it is not a final order and could not be the source of any estoppel or res judicata. The order speaks extremely briefly of an account of profits, obviously in contemplation of further detailed directions about the taking of such an account and about what was to be done with the matter ascertained on taking the account. ... [6] An order for an account of profits, including the order made on 8 March 2007 which used "such profits" to refer back to the declaration previously made, on its ordinary and natural meaning and without any further exposition is an order for an account of losses if matter accounted for should have generated losses. If the Court had intended anything so strange as an account or enquiry limited only to profits, and to leave ascertainment of losses, if there should be any, to be neglected and not dealt with, there would have been a marked departure from the Court's statutory duty to resolve the whole controversy. If the order of 8 March 2007 had been intended to effect any [sic] so strange a result I am confident that it would say so in a highly explicit manner. 13 Those provisions of the Bankruptcy Act of immediate relevance to the Application now before this Court are ss 40(1)(g) and 41 (7). 14 Section 40(1)(g) of the 1966 Act provides as follows: Acts of bankruptcy (1) A debtor commits an act of bankruptcy in each of the following cases: ... (g) if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not: (i) where the notice was served in Australia--within the time specified in the notice; or (ii) where the notice was served elsewhere--within the time fixed for the purpose by the order giving leave to effect the service; comply with the requirements of the notice or satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained; ...