Withycombe v Moistlow Pty Ltd[2011] QDC 30

[2011] QDC 30

DISTRICT COURT

CIVIL JURISDICTION

JUDGE R JONES

No 1263 of 2003

BRISBANE

DATE 11/03/2011

ORDER

HIS HONOUR:  This is an application for leave to commence enforcement proceedings against the fourth defendants consequent upon an order made against them.

Leave is required under rule 799 of the Uniform Civil Procedure Rules because more than six years has elapsed since the orders were made.

The application was opposed by Mr Ellis who is one of the fourth defendants and has the authority to act for the other fourth defendant, his wife.  Under rule 799(3) leave could have been sought on an ex parte basis but in this case the fourth defendants were given notice of the application.

The Judgment underlying this application was a Judgment entered in favour of the plaintiff against the fourth defendants and the second defendants on 22 April 2003 in default of the defendants filing a notice of intention to defend.

Under rule 799, sub rule (4), on an application for leave to start enforcement proceedings in such circumstances the applicant must satisfy the Court;

a)As to the amount including interest owing at the date of the application, and,

b)If it is more than six years since the money order was made as to the reasons for the delay, and,

c)If that has been a change in an enforcement creditor or enforcement debtor as to the change.

d)That the applicant is entitled to enforce the order, and,

d)That the enforcement debtor, against whom enforcement is sought, is liable to satisfy the order.

It is not being disputed that the matters in sub rules (4)(a) and (4)(e) are satisfied, assuming that they need be in an application of this type.  (4)(c) is not relevant.  As to (4)(d) the respondents/defendants assert that the applicants are not entitled to enforce the orders as, as I understand the argument, it would cause them material prejudice.

Before I come to the reasons for delay and prejudice I should mention that this application was adjourned by me on Monday of this week.  The reason that I granted the adjournment was, as I understood it, so that Mr Ellis could get legal advice and to put together material which would establish the basis for disputing the balance of the debt as alleged.

Today Mr Ellis appeared in person again and, more importantly, though, no documentation was produced which in any way challenged the balance of the debt as asserted by the applicants.

Instead an affidavit of Mr Ellis was relied on.  In paragraphs five to 17 of that affidavit Mr Ellis deposes to the following, "The plaintiff claimed the amount of $59,628.30 in 2003.  In late November 2004 I approached the plaintiff with an offer of payment over time.  The plaintiff agreed to the amount of 22,000, 20,000 to be paid at a rate of $25 per week until paid with no interest to be accrued.  I commenced on the 21st of December 2004.  In September 2007 I was terminated from a driving contract that was the primary source of income from my family.  In the same month I ceased making payments as per the private agreement on 2004.  In April 2008 we were served with documents to appear for an enforcement hearing on 8 May 2008.  After seeking financial counselling we asked Reverend Nathan Richards to approach the plaintiff and other creditors on our behalf.  On 7th May 2008 I was present in the offices of Reverend Nathan Richards when we called Brendan (last name unknown) from Macfie Curlewis Spiro.  We informed Brendan that we had completed and signed a declaration of intention to present a debtor's petition.  This declaration restrains creditors from any action for a period of 21 days.  The plaintiff's solicitor, Brendan, rang us back and confirmed that the enforcement hearing would not proceed.  The plaintiff's solicitors said that, 'Bankruptcy served no purpose for anyone in this matter,' and further that his clients would not continue their actions."

The reasons for the delay in bringing these proceedings are not fully explained and I must say, in my view, there are some periods simply unexplained. However, since the date of Judgment the applicants have not sat idle.  On 21 December 2004 the applicants entered into a payment arrangement with the respondents.  That continued until September 2007 when it was terminated through no fault on their part.

From September 2007 to May 2008 no further payments were made and so the applicants sought to commence enforcement proceedings which were to be heard on 8 May 2008. However those proceedings were adjourned to a date to be fixed, no doubt, as a result of what the applicants were told on 7 May 2008, namely, that the respondents intended to file for bankruptcy. That the intention of the applicants was to file for bankruptcy was probably the reason why the applicant's solicitors said they would not proceed further with the matter.

However, the respondents did not file for bankruptcy and on 29 January 2010 another application was brought pursuant to rule 799 but was refused on the basis that the leave of the Court was required.

Since 29 January 2010 to now the matter has, it seems to me, sat relatively idle and there has been no express explanation provided as to the time lapse between 29 January 2010 to now.

Despite there being no direct evidence, however, on the material before me it would be reasonable, in my view, to draw the inference that the applicants were probably cautious about racking up further legal fees in circumstances where there was a risk that they would not be able to be recovered because of the financial situation of the respondents.

That said, I must say, had Mr Ellis been able to point to any real evidence of prejudice caused by the delay, that unexplained period from January 2010, might have been favourable to his case. However, despite the adjournment of this matter Mr Ellis has not been able to point me to any evidence of real prejudice.

Reference was made to the health of his wife and one child.  That reference was made from the Bar table but no evidence was produced, either as to their medical condition or how that might otherwise cause prejudice.

The representation made on 7 May 2008 referred to in Mr Ellis' affidavit cannot be seen, in my view, as a bar to the application.  It is tolerably clear to me that that would have been made on the basis that at that time the respondents were about to - as far as the applicant's solicitors were concerned - for bankruptcy.  Also, by reference to the actions of the applicants in January 2010, it should have been clear to the respondents that the applicants had not abandoned the balance of the debt owing.

As was observed by Judge McGill SC in Roberton v Moran [2010] QDC 221 at paragraph six, "The Court may decline to grant leave if the time period has expired but the primary consideration is to ensure the party applying to execute has the right to what is requested and if the executor creditor shows a right, the Court, whilst it does have a discretion to refuse leave would usually grant leave."

On balance, while this has not, to me, been an entirely clear cut case I have decided on balance that I should exercise my discretion in favour of the applicants.

Accordingly, the orders of the Court will be that the applicants be granted leave to start enforcement proceeding against the fourth defendants, the respondents to this application, pursuant to rule 799(2) of the Uniform Civil Procedure Rules 1999.

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HIS HONOUR:  Order two will be that the respondent/defendants are to pay the plaintiffs/applicant's costs of and incidental to the adjournment of the matter on 7 March 2011, such costs to be fixed in the sum of $2,186.05. Third, that the costs of and incidental to today's proceedings are to be costs of any subsequent enforcement proceedings against the respondent/defendants and are not to include any costs associated with the adjournment of the application on Monday 7 March 2011.

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