Australia and New Zealand Banking Group Limited v S & Co

Judgment - EX TEMPORE 1By a Summons filed on 12 June 2014 the plaintiff, for whom Mr P Newton of Counsel appears, seeks relief in connection with a garnishee order made on 7 May 2014 by the District Court. The plaintiff is a judgment creditor of Mr Malcolm Downie for a considerable sum as a result of proceedings brought by the plaintiff against him in that Court. The garnishee named in the order is the defendant to these proceedings, referred to as "S & Co". 2The defendant is a solicitor who acted for Mr Downie in the District Court proceedings and has continued, until recent times, to act for him. S & Co appeared in these proceedings but has indicated that it would submit to any orders save as to costs. 3Mr J T Johnson of Counsel appeared for S & Co today. He returned to the Court the affidavit of Laila Hachem sworn on 19 June 2014 which has annexed to it the original cheque which is at the centre of this dispute. That cheque is a cheque drawn by the plaintiff's lawyers, Gadens, in favour of S & Co in the sum of $100,000. In brief, the plaintiff claims that the cheque should be returned to Gadens (as agent for the plaintiff) on the basis that when the garnishee order was served on S & Co there was a debt of $100,000 due and accruing from S & Co to Mr Downie. 4Mr Downie has not been made a party to these proceedings. It is clear, however, that he has had ample notice of them, including of the hearing date today. Mr Johnson informed the Court this morning that Mr Downie had indicated to Mr Johnson's instructing solicitors that there were health issues which preclude his attendance today. Nevertheless, there is no suggestion that Mr Downie has taken any step to take any active role in the proceedings. I do not consider that his absence as a party precludes the hearing of the matter, nor the granting of relief. 5The salient facts appear to be as follows: (1)On 23 November 2011 the plaintiff obtained judgment against Mr Downie in the District Court in the sum of $729,062.94 plus interest. (2)Subsequently, settlement negotiations were held. In the course of those discussions S & Co wrote to Gadens on 3 August 2012 stating: "We are instructed to make the further offer: