Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QMC
  3. 2017
  4. Nebo Service Centre Pty Ltd v Maund - [2017] QMC 5

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Nebo Service Centre Pty Ltd v Maund[2017] QMC 5

Nebo Service Centre Pty Ltd v Maund[2017] QMC 5

MAGISTRATES COURT OF QUEENSLAND

CITATION:

Nebo Service Centre Pty Ltd v Maund [2017] QMC 5

PARTIES:

Nebo Service Centre Pty Ltd

(Judgment creditor/respondent)

v

Ronald Earle Maund & Karen-Lee Maund

(Judgment debtors/applicants)

FILE NO/S:

M233/14

DIVISION:

Magistrates Court

PROCEEDING:

Civil

ORIGINATING COURT:

Toowoomba

DELIVERED ON:

12 May 2017

DELIVERED AT:

Toowoomba

HEARING DATE:

27 April 2017

MAGISTRATE:

G Lee

ORDER:

Application dismissed

CATCHWORDS:

Procedure – Queensland – Practice under rules of Court – Orders made on Summary judgment – application to set aside or stay

LEGISLATION:

The following legislation was cited:

Uniform Civil Procedure Rules, rr.300, 668, 800 & 819.

Uniform Civil Procedure (Fees) Regulation 2009, reg 5, Schedule 2 Part 2

The following cases are cited:

180 Capital Finance Pty Ltd v Coomer & Anor [2010] QSC 116

Kleiner v Ross (No 2) [2009] QDC 239

Lee v Abedain [2017] QSC 22

Paradise Grove Pty Ltd v Stubberfield [2002] QSC 3

Rockett v The Proprietors of “The Sands” BUP 82 [2001] QCA 99

State Bank of Victoria v Parry [1989] WAR 240.

COUNSEL:

Mr P G Jeffrey of counsel for the applicant judgment debtors.

Mr D Edwards of counsel for the respondent judgment creditor (direct access)

SOLICITORS:

Wonderley & Hall Solicitors for the applicant judgment debtors

  1. [1]
    By application filed 10 April 2017 Ronald and Karen-Lee Maund (the Applicants) seek relief under various rules of the Uniform Civil Procedure Rules 1999 (UCPR) as follows:
  • That, pursuant to rule 668 UCPR, the order made on 2 July 2015 after a summary judgment application that “by consent …the [Applicants] pay the [Respondent] $102,600 inclusive of interest, costs and reserved costs on or before 31 July 2015 failing which the respondent is at liberty to enter judgment…” and the consequent entering of that judgment on 25 August 2015 be set aside.
  • Alternatively, pursuant to rules 300 and 800 UCPR, the enforcement of the above order and judgment be stayed.
  • Alternatively, pursuant to rule 819 UCPR, the enforcement warrant issued 15 April 2016 be set aside or stayed.
  1. [2]
    The application under rule 819 UCPR was withdrawn at the hearing because the warrant that issued 15 April 2016 expired 14 April 2017[1].
  1. [3]
    The Applicants have not appealed the consent order or the judgment.
  1. [4]
    The Applicants, who are horse trainers, rely on the affidavit of Ronald Earle Maund sworn 10 April 2017 and an affidavit of solicitor Mary-Anne Ewart Ole sworn 21 April 2017. The latter relates to service of the application and supporting material on the Respondent. Mr Jeffrey of counsel also provided written submissions dated 27 April 2017.
  1. [5]
    The Respondent relies on the affidavit of Evan John Hartley sworn 27 April 2017[2]. He, together with his wife Joan Hartley, are the only directors and shareholders of the Respondent and another company Dovedeen Pty Ltd. They operate a number of businesses, a motel and two service stations, and have been involved in the thoroughbred racing industry for a long time[3].

The Rules

  1. [6]
    Rule 668 UCPR[4] provides:

“668 Matters arising after order

  1. (1)
    This rule applies if –
  1. (a)
    Facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or
  1. (b)
    Facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person’s favour or to a different order.
  1. (2)
    On application by the person mention in subrule (1), the court may stay enforcement of the order against the person or give other appropriate relief.
  1. (3)
    Without limiting subrule (2), the court may do one or more of the following –
  1. (a)
    Direct the proceedings to be taken, and the questions or issue of fact to be tried or decided, and the inquiries to be made, as the court considers just;
  1. (b)
    Set aside or vary the order;
  1. (c)
    Make an order directing entry of satisfaction of the judgment to be made. (my emphasis).”
  1. [7]
    Rule 300 UCPR[5] provides:

“300 Stay of enforcement

The court may order a stay of the enforcement of a judgment given under this part for the time and on the terms the court considers appropriate.”

  1. [8]
    Rule 800(1) provides[6]:

“800 Stay of enforcement

  1. (1)
    A court may, on application by an enforcement debtor –
  1. (a)
    Stay the enforcement of all or part of a money order, including because of facts arising or discovered after the order was made; and
  1. (b)
    Make the orders it considers appropriate, including an order for payment by instalments. (my emphasis)”

Background and Brief History

  1. [9]
    On 3 September 2014 the Respondent commenced proceedings in Toowoomba against the Applicants seeking $127,000.
  1. [10]
    It was alleged that on 6 April 2011 the Respondent loaned $25,000 to the Applicants. Then on 1 June 2012 they lent a further $102,000 to the Applicants for two years with interest of 10% yearly[7].
  1. [11]
    In his affidavit Mr Maund refers to two loans being a “home loan” and a “Winnebago loan”[8].
  1. [12]
    Mr Hartley explains the context in which the loans were made in his affidavit. The Applicants were experiencing financial difficulties and the Respondent agreed to assist. The $25,000 was lent on 6 April 2011.
  1. [13]
    Then on 1 June 2012 when steps were being taken to bankrupt Ronald Maund, the Respondent agreed to refinance the Applicant’s home in Toowoomba in the amount of $200,000 secured by a first mortgage. The house was sold 5 July 2013 and the Respondent was paid $246,972.60[9]. Mr Hartley says the moneys secured plus interest were paid out as well as the $25,000 loan[10].
  1. [14]
    In the meantime the Respondent advanced another $102,000 to the Applicants on either 1 June 2012 (date pleaded) or “in July 2012” (as per para [8] Hartley’s affidavit).
  1. [15]
    It is alleged by the Respondent that the $102,000 loan was secured by way of a mortgage over a Winnebago motor home. An acknowledgment to this effect signed by the Applicants is dated 26 July 2012[11]. The Applicants do not dispute the existence of that document but say that they were told by Mr Hartley that such security would not be required if the sale of the house fell through[12].
  1. [16]
    A notice of intention to defend and defence was filed 3 October 2014 by then solicitors acting for the Applicants. No counterclaim was pleaded. The Respondent’s reply was filed 12 November 2014.
  1. [17]
    An application by the Respondent seeking possession of the Winnebago filed 30 January 2015 was dismissed on 26 March 2015.
  1. [18]
    On 26 March 2015 the Respondent filed an application seeking summary judgment which was returnable on 4 June 2015. The parties were legally represented. The court file endorsed by the presiding Magistrate directed the Respondent who was the Applicant in that application give disclosure within 14 days and that the parties file and serve further material and exchange submissions. Submissions for the parties are on file.
  1. [19]
    Then on 2 July 2015, the consent order outlined in [1] above was made. Again, both parties were legally represented.
  1. [20]
    At the current hearing, counsel for the Applicants contended that the substance of the order made 2 July 2015 was not by consent, the basis for it is not clear and that only quantum rather than liability was resolved. It was his understanding that the presiding Magistrate in the summary judgment application had given reasons for decision and that there were no concessions by either party[13] apart from the delay in entering a judgment to afford the Applicants the best opportunity of arranging finance[14].
  1. [21]
    There is no written judgment on the court file. Further, I have had the advantage of listening to the audio recording of the matter before Magistrate Carroll on 2 July 2015 commencing at about 2:25pm and finishing 2:31pm. Initially, Magistrate Carroll thought he may have acted for Mr Hartley about 30 years ago while in practice as a solicitor in Rockhampton and raised whether there was a conflict. He was assured by legal representatives for both parties that he was not required to make a decision as the matter had been resolved by consent. He proceeded on that basis. He was informed by the legal representatives that agreement had been reached after full disclosure of documents. The legal representative for the Applicants at the time also noted that some overpayments made by the Applicants to the Respondent were taken into account in arriving at an agreement. There was no hearing or determination by Magistrate Carroll. I note that the Applicants’ current solicitors were not solicitors on the record then.
  1. [22]
    As the Applicants had not obtained finance by 31 July 2015, judgment for $102,600 was entered on 25 August 2015[15].
  1. [23]
    On 15 April 2016 an enforcement warrant was issued[16] and on 5 December 2016 the enforcement officer seized the Winnebago. The Applicants were advised of the seizure by letter dated 7 December 2016 from the enforcement officer[17]. It was originally listed for sale by auction 31 January 2017. At the time of this hearing it was advertised for sale by auction on 4 May 2017.
  1. [24]
    On 9 January 2017, a Notice of Change of Solicitors was filed advising the appointment of the Applicants’ current solicitors. Undoubtedly due to the imminent sale on 31 January 2017 and as a matter of urgency they sought an agreement to stay execution of the enforcement warrant at various times from 10 January 2017[18].
  1. [25]
    Also relevant to this application is that the Applicants were engaged as horse trainers by Dovedeen Pty Ltd (Dovedeen) which has the same directors as the Respondent. On 19 April 2013 Dovedeen commenced proceedings in the Magistrates Court at Moranbah claiming $138,000 for the reduction in value of horses due to alleged unauthorised actions of the Applicants. The Defendants, who were represented by the same firm of solicitors that were in the current matter prior to 9 January 2017, filed a defence and counterclaimed $100,105 for fees owing for the period “about 2012 to 30 September 2013”[19]. The Applicants now counterclaim $678,404.38[20] in the Dovedeen proceedings. In support, copies of invoices from 11 July 2011 to August 2015 are exhibited to Mr Maund’s affidavit[21]. On 22 December 2016 the Applicants’ previous solicitors notified the Respondent’s legal representative of an intention to amend the counterclaim[22]. That matter is to be transferred to the Districy Court in Toowoomba unopposed.

Submissions

  1. [26]
    In reliance on rule 668(1)(b) UCPR the first submission was that facts which existed before Magistrate Carroll’s orders on 2 July 2015 only came to light subsequently and that such facts would support a valid counterclaim for the amount of $102,000 which is the amount allegedly secured by the Acknowledgement dated 26 July 2012[23]. It was submitted that these facts would have come to light before 2 July 2015 had the Applicants received more thorough legal advice. 180 Capital Finance Pty Ltd v Coomer [2010] QSC 116 per Atkinson J was cited.
  1. [27]
    It was submitted that the Applicants were induced into the loans with security taken over their home and Winnebago on the grounds of unconscionable conduct on the part of the Respondent. I note though that the Acknowledgment only relates to the Winnebago loan. The home loan and other amounts have been repaid from the proceeds of sale of the house[24]. There is no suggestion in the material that the Applicants contested the enforcement of the home loan security at the time on the grounds they now do in the current application. The $246,972.60 was paid to the Respondent on or about 5 July 2013 after proceedings had been commenced against them by Dovedeen on 19 April 2013. It is not clear when they were served[25] but a conference was held prior to the sale of the house on 12 May 2013 between the parties’ solicitors and the applicants in respect of it[26].
  1. [28]
    The alleged facts relied on are set out at paragraph [38] of Mr Maund’s affidavit: Mr Hartley for the Respondent objected to an increase to the Applicants’ training fee of $50 per day to enable them to service their home loan from the National Bank and the Winnebago loan but instead offered to re-finance their loans; the respondent well knew that at the time of making the loans that it was a major client of the Applicants; the Respondent’s directors did not advise them to seek independent legal advice in respect of the offers of financial assistance when it knew that the Applicants did not have a high level of education or business acumen; the directors of Dovedeen who are also directors of the Respondent were aware or ought to have been aware that if it refused to pay training fees, the Applicants would be unable to repay the loans; Mr Hartley advised that the security over the Winnebago would not be required unless the sale of the Applicant’s home fell through; the home was sold on 5 July 2013 and the Respondent was paid $246,972.60 which included the amount owing under the home loan; there is an allegation that the description of the Winnebago in the Acknowledgment of security over it was “not noted” and that this was added by someone to enable it to be registered on the Personal Property Security Register.
  1. [29]
    On that last point, both copies of the Acknowledgement exhibited to the affidavits of Mr Maund and Mr Hartley show that it is a typed document. The only apparent alteration is handwritten and was the dollar amount secured. It was changed to $102,000 and initialled by the Applicants. On its face, the description of the Winnebago is typed in along with the rest of the typed document without any indication that it had been subsequently altered. Without more, it is not readily apparent how those details could have been added after it was signed by the Applicants.
  1. [30]
    The submission continues that granting a stay of the enforcement of the order will allow the Applicants to litigate the counterclaim in these proceedings alleging “unconscionability” at common law and noncompliance with the National Credit Code. No details about the latter were advanced during argument. This, it was submitted, will avoid the need to initiate fresh proceedings thus avoiding a multiplicity of proceedings.
  1. [31]
    The second and alternative submission[27] was based on statements made in the single judge decision of The State Bank of Victoria v Parry [1989] WAR 240 per Malcolm CJ (Parry) which was considered in Kleiner v Ross (No 2 [2009] QDC 239 per Durward DCJ.
  1. [32]
    The first passage relied on in Parry is at 246 where, in referring to a passage by Bingham LJ in the English Court of Appeal case of Burnet v Francis Industries PLC [1987] 1 WLR 802 Malcolm CJ said[28]:

“It would seem that where company A sues company B and obtains judgment and company C, which is very closely associated with company B, has a claim against company A for an amount not less than the amount of the judgment, the court may be prepared to lift the corporate veil and grant a stay. When it does so, it is in effect treating the claim by company C as if it were a counterclaim by company B”

  1. [33]
    In Parry, the Defendants were seeking an indemnity against a third party should they be found liable to the Plaintiff. The Plaintiff’s action commenced 26 October 1988 and third party proceedings were instituted on 14 November 1988. An expedited trial for the third party proceedings had been ordered and the court accepted that any stay would operate for at least 2.5 months[29].
  1. [34]
    A partial stay was granted in Parry. Given the evidence of the first Defendant’s limited means in satisfying the full judgment, the Court concluded that the Plaintiff’s position would be improved by a stay if third party proceedings were successful and a considerable injustice would result if the first Defendant was denied an expeditious resolution of third party proceedings.
  1. [35]
    The submission is that Mr Hartley is a director and shareholder of the Respondent and Dovedeen and it is his alleged actions which are said to be unconscionable.
  1. [36]
    In the Dovedeen proceedings Dovedeen claims $138,000 damaged for diminution of the value of six brood mares due to alleged unauthorised actions by the Applicants. The Applicants have a counterclaim of $678,404.38 fees for services rendered as horse trainers in that litigation.
  1. [37]
    It is submitted there is a prima facie defence by reason of an indemnity clause in the terms and conditions of training[30] and that the counterclaim has a sustainable basis.
  1. [38]
    It was further submitted that without a stay, the Applicants “will have no protection against financial hardship (or worse, bankruptcy) hindering their ability to prosecute the counterclaim against Dovedeen”[31]. I note that the Applicants have provided no evidence as to their current means let alone their current financial position including income and assets.
  1. [39]
    It was submitted that all of the factors in Parry are present in this case, namely the strength and size of the counterclaim, the Respondent would suffer no real prejudice in circumstances where its stakeholders and alter egos are one and the same as Dovedeen and that there is no evidence of prejudice adduced by the Respondent if a stay were granted.

Discussion

  1. [40]
    The first point to note is that the Applicants bear the onus of proving why the judgment should be set aside or a why a stay should be granted.
  1. [41]
    Consent orders were made on 2 July 2015. The first and main obstacle for the Applicants is that Magistrate Carroll did not make any rulings on that day. Rather, both parties through their legal representatives informed the court that the matter was resolved by consent. In those circumstances, as McPherson JA said in Rockett v The Proprietors of “The Sands” BUP 82 [2001] QCA 99 on consent orders at [10][32]:

“Courts have only limited powers to set aside their orders, and the power to do so is even more restricted when the order in question has been made by consent of the parties to it; at least that is so when a compromise is involved, as it plainly was here … In Harvey v Phillips (1956) 95 CLR 235, 243-244, the High Court said that the question where a compromise embodied in a consent order is to be set aside ‘depends on the existence of a ground which would suffice to render a simple contract void or voidable or entitle the party to equitable relief against it’. …”

  1. [42]
    In their application under rule 668 UCPR the Applicants raise unconscionable conduct on the party of the Respondent in circumstances outlined at [28] & [30] above. In my view, without more, the matters deposed to fall well short of grounds that may render the compromise voidable. Also there is significant delay in raising unconscionability which has not been addressed in Mr Maund’s affidavit: see examples of the principles for equitable relief in Commercial Bank of Australia v Amadio (1983) 151 CLR 447 and Blomley v Ryan (1954) 99 CLR 362. These cases were canvased during the hearing.
  1. [43]
    I also note that unconscionability on the part of the Respondent is said to have occurred when the “home loan” and “Winnebago loan” were taken out i.e. May, June or July 2012[33]. The essence of the allegation is that Mr Hartley for Dovedeen would not agree to increase their fees and that the Applicants were induced by him into taking those loans knowing the Applicants depended upon timely payment of invoices by Dovedeen. However, while there were no submissions on the point, I note that out of the large bundle of invoices exhibited to Mr Maund’s affidavit (exhibit 16), there are no invoices for the period February 2012 to and including October 2012. Although there may be an explanation, this begs the question as to what was the inducement at the time the loans were taken out when there is no evidence of invoices rendered showing work undertaken by the Applicants for Dovedeen in that period and in circumstances when the term of the home loan was only 12 months.
  1. [44]
    It should be further noted that the consent judgment is nearly 22 months old. It has not been appealed. Mr Hartley deposes that despite agreeing to delay the entering of judgment pending payment by 31 July 2015, the Applicants “disappeared from the area” ultimately locating them living in the Winnebago in Ballina, New South Wales[34]. On the evidence the Applicants only agitated this after they had engaged their current solicitors and in circumstances where they had just recently been informed that the Winnebago was seized. While it was suggested from the bar table that the Applicants raised the matters in paragraph [38] of Mr Maund’s affidavit with their former solicitors that is not in evidence. The Applicants have not deposed to any explanation for the delay[35]. While delay is not itself determinative, it is a factor to be considered in conjunction with other matters such as the nature of acts done during the interval prior to asserting a right. The court is left in the dark about what, if any acts had been done by the Applicants prior to engaging new solicitors.
  1. [45]
    Therefore, on the current material, I would not be disposed to setting aside the consent order of 2 July 2015 and consequent judgment of 25 August 2015. For completeness, I shall now turn to the applications under the UCPR.
  1. [46]
    Relevantly, rules 668(1)(b) and 800 operate if facts that existed before the order is made are discovered after the order is made. In my view, the facts alleged in para [38] of Mr Maund’s affidavit were within the knowledge of the Applicants before the order was made on 2 July 2015. This is exemplified by the fact that non-payment of invoices would have been at the forefront of the Applicants minds when they instructed their former solicitors to counterclaim in the Dovedeen proceedings which were instituted well before the current proceedings. Even if, as suggested from the bar table, they informed their former solicitors of the matters in paragraph [38] of Mr Maund’s affidavit and who did not act on it, the Respondent should not have to bear that burden. As submitted for the Respondent, remedies may lay elsewhere for the Applicants.
  1. [47]
    The starting point for stay Applications made under the UCPR is as described by Applegarth J in Lee v Abedian [2017] QSC 22 at [4] when considering an application under rule 800 UCPR (footnotes omitted)[36]:

“The ultimate issue is whether it is appropriate to grant a stay in the particular circumstances of this case, taking into account the need to do justice between the parties by balancing their competing rights and interests. An applicant for a stay does not need to show special or exceptional circumstances. Nevertheless, the onus is upon the applicant to demonstrate that it is appropriate for a stay to be granted. In general, courts should not be disposed to delay the enforcement of their orders, and a successful party in litigation is entitled to the fruits of a judgment. Delay in bringing and application is a factor against the granting of a stay[37].”

  1. [48]
    In dealing with an application under rule 668(1)(a) UCPR Wilson J in Paradise Grove Pty Ltd v Stubberfield & Another [2002] QSC 3 at [15] said:

“This rules does not provide a substitute for an appeal. Rather, it is premised on an order having been correctly made, but facts having subsequently arisen which justify relieving a party from the operation of the order: Rockett v The Proprietors “The Sands” BUP 82 [2001] QCA 99 …Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 165.”

  1. [49]
    Similar comments were made in an application under rule 668(1)(b) UCPR by Atkinson J in 180 Capital Finance Pty Ltd v Coomer & Anor [2010] QSC 116 at [7] (footnotes omitted)[38]:

“The rule is not a substitute for an appeal but rather assumes that the order was correct on the facts then known. There is a public interest in the finality of judgments and so an order, once made, is usually final unless successfully appealed against. This rule operates in conjunction with that general rule.”

  1. [50]
    On an application under rule 300 UCPR Durward SC DCJ in Kleiner v Ross (No 2) [2009] QDC 239 notes at [27] that:

“An order pursuant to rule 300 is at the discretion of the court. See Daewoo Australia Pty Ltd v Porter Crane Imports Pty ltd t/as Betta Machinery sales (2000) QSC 50 co-heard with Porter Crane Imports Pty Ltd v Daewoo Australia Pty Ltd (2000) QSC 50, wherein reference was made to the decision of the Court of Appeal in The “Fedora” (1986) 2 Lloyd’s Rep 441 and Coca-Cola Financial Corporation v Finsat International Ltd (1998) QB 43 where the court said:

“We do not doubt that the court has a discretion to grant a stay but it should in our view be ‘rarely if ever’ exercised.””

  1. [51]
    There are statements to the effect that where there is a bona fide counterclaim for an amount not less than the plaintiff’s claim, a stay of execution of a summary judgment will usually be ordered until the trial of the counterclaim: Lu Simon Builders Pty Ltd v H D Fowles & Ors (1992) 2 VR 189 per Smith J cited at [28] in Kleiner v Ross. See also Parry at 246 (point 2) to similar effect.
  1. [52]
    The Applicants relied on passages from Parry cited at [32] above. While the rule there required a finding of “special circumstances” which is not required under the UCPR, the passages relied on in identifying some factors relevant to the exercise of the discretion to stay have to be read in the context of that case and other passages that precede it.
  1. [53]
    It is recalled that in Parry, a partial stay was granted pending the outcome of third party proceedings to establish whether the first defendant would be indemnified by the third party. That is, the subject matter of the third party proceedings was closely related to the subject matter of the primary proceedings. At 246 Malcolm CJ said[39]:

“Where the counterclaim arises out of quite a separate and distinct transaction or there is no connection between the claim and counterclaim, the proper order is for judgment for the plaintiff with costs without a stay pending the trial of the counterclaim…The degree of connection between the claim and counterclaim, the strength of the counterclaim and the ability of the plaintiff to satisfy any judgment on the counterclaim and the ability of the plaintiff to satisfy any judgment on the counterclaim are some of the considerations which the court may take into account of in the exercise of its discretion whether or not to order a stay. In general, therefore, a counterclaim which is in effect an unconnected cross action will not provide a basis for a stay under [the rule]. Consistently with this position, a stay of execution of a judgment will not ordinarily be granted simply because the defendants bring a cross claim in another action against the plaintiff, in the absence of special circumstances rendering it inexpedient to enforce the judgment…

  1. [54]
    In weighing up the factors, the starting point is that the Respondent is entitled to the fruits of the judgment of $102,600 entered 25 August 2015 without delay. It was submitted that if the Applicants counterclaimed on the grounds of unconscionability it would not have been open for Magistrate Carroll to give summary judgment. If that is an assertion that the orders made on 2 July 2015 were incorrect, then this is the wrong approach for a stay application. The order must be assumed to be correct at the time it was made. Further, it was a consent order.
  1. [55]
    The enforcement officer seized the Winnebago on 5 December 2016 and it has remained in his possession. It is an asset instantly available to satisfy or substantially satisfy the judgment.
  1. [56]
    This case is contrasted to those cases where an Applicant for a stay has satisfied a court with admissible evidence that there is very limited or no capacity to satisfy a money judgment so that there is no immediate benefit for a judgment creditor if a stay were refused: see Lee v Abedian for example. Although the rules in Parry differ from the UCPR, Malcolm CJ at 254 discussed the need to make proper or adequate disclosure of income, assets and liabilities particularly when it is asserted that there is an inability to pay or, I interpolate, whether those circumstances would affect an ability to pursue other litigation.
  1. [57]
    The Applicants have not provided any evidence to support their contention that the sale of the Winnebago would affect their financial position to the extent that it would impede their ability to pursue a counterclaim against Dovedeen[40]. Indeed, the Applicants have provided no evidence to suggest that they are in jeopardy of going bankrupt at this time. I note they have engaged new solicitors although it is not known upon what basis they are engaged. Also, the Applicants must not have been living in the Winnebago since it was seized on 5 December 2016 at the latest. I note Mr Hartley says in his affidavit that the Applicants were facing financial difficulties and bankruptcy in 2012. But that is nearly 5 years ago.
  1. [58]
    Another factor against the exercise of the discretion to stay is that the subject matter of the Dovedeen proceedings is totally unrelated to the proceedings that led to judgment in this case: see Parry cited at [53] herein. This is a loan dispute whereas the Dovedeen matter is a dispute about horses and training fees. The only connection is that Dovedeen and the Respondent share common directors coupled with an allegation of unconscionability.
  1. [59]
    The Applicants submitted that no prejudice has been shown by the Respondent if a stay were granted. I respectfully reject that submission. While the Winnebago remains in the enforcement officer’s possession, the enforcement officer is entitled to claim possession fees of up to $98.65 per day to be determined by the registrar of the court pursuant to the Uniform Civil Procedure (Fees) Regulation 2009, reg 5, Schedule 2 Part 2. Delaying enforcement to enable the conclusion of the Dovedeen proceedings in the District Court would erode the proceeds of sale of the Winnebago in order to satisfy the judgment.
  1. [60]
    I do not accept as a compelling factor in support of a stay that the Respondent’s position is protected given the alleged strength of the Applicants’ counterclaim in the Dovedeen proceedings and that should the Applicants succeed, the amount of the current judgment can be set off. On its face, there is a prima facie case which needs to be litigated but there is no admissible evidence to suggest that the Applicants will be unduly impeded to pursue that claim due to a lack of funds.
  1. [61]
    The application is dismissed. I will hear the parties as to costs.

Footnotes

[1] Para [6] submissions for the applicants. Section 91 Civil Proceedings Act 2011 relevantly provides that an enforcement warrant ends one year after it issues. It appears no application was made for renewal of that warrant under rule 821 UCPR.

[2] Except that paras [18], [19] & [20] were excluded over objection at the hearing.

[3] Paras [1] & [2] affidavit of Hartley; Paras [24], [25] and exhibits 9 & 10 affidavit of Maund.

[4] In Chapter 16 (Orders).

[5] In Part 2 (Summary judgment) or Chapter 9 (Ending proceedings early).

[6] In Chapter 19 (Enforcement of money orders)

[7] Paras [1] to [4] Statement of Claim.

[8] Para [2].

[9] Para [38(vi)] affidavit of Maund.

[10] Para [10] Hartley’s affidavit.

[11] See para [8] and exhibit A of affidavit of Evan John Hartley sworn 27 May 2017; exhibit 18 affidavit of Ronald Earle Maund sworn 10 April 2017.

[12] Para [38(v)].

[13] Audio recording of hearing on 27 April 2017 at 3:37pm onwards.

[14] Para [12] submissions for the Applicants; paras [9] & [10] Maund’s affidavit; paras [12] & [13] Hartley’s affidavit.

[15] Paras [10] &[11] Maund’s affidavit; para [14] Hartley’s affidavit.

[16] The date (4 April 2017) at para [12] of Maund’s affidavit seems incorrect.

[17] Para [13] Maund’s affidavit.

[18] Paras [14] to [20] Maund’s affidavit.

[19] Para [15] Defence and Counterclaim in the Dovedale proceedings as exhibit 12 Maund’s affidavit.

[20] Paras [31] & [33] Maund’s affidavit. See also Amended Defence and Counterclaim enclosed with a letter from the Applicants’ solicitors dated 27 March 2017 in exhibit 15 Maund’s affidavit.

[21] Exhibit 16. I note there are no invoices from February 2012 to and including October 2012.

[22] Para [30] & exhibit 14 Maund’s affidavit. Invoices claiming training fees seem to stop around mid-July 2013 when relations between the parties soured. Invoices thereafter only claim other fees such as adgistment and stabling. See also letter from Respondent’s lawyers to the Applicants’ lawyer of 12 May 2013 at exhibit B Hartley’s affidavit.

[23] Exhibit 18 Maund’s affidavit; exhibit A Hartley’s affidavit.

[24] Para [10] Hartley’s affidavit.

[25] The Defence and Counterclaim (exhibit 12 to Maund’s affidavit) is dated 23 October 2013.

[26] Exhibit B Hartley’s affidavit.

[27] Paras [18] to [30] submissions for the Applicants.

[28] At 246 at point 8. See also a quote of Bingham LJ’s judgment at 247 at point 3 to similar effect.

[29] At 243 from line 35.

[30] Clause 11 “Liability”

[31] Para [26] submissions.

[32] With whom Williams JA & Wilson J agreed.

[33] Exhibit A Harley’s affidavit (the Acknowledgement dated 26 July 2012)’ exhibit B (iv) & (v) (letter from Respondent to National Australia Bank and Loan Summary in respect of the home loan).

[34] Paras [14], [16] & [17] Hartley’s affidavit.

[35] See for example Meagher, Gummow and Lehane’s Equity Doctrines and Remedies, LexisNexis Butterworths 2015, Chapter 38 “Laches” which outlines examples in which equitable relief is refused on the ground of laches. In particular see para [38-070] “Knowledge by the plaintiff”.

[36] That was also an application for a stay of an interlocutory costs order.

[37] See also Parry at 244 point 7.

[38] That application was refused primarily on the basis that the facts allegedly discovered were not fresh facts discovered after the order was made: at [22].

[39] Cited with approval in Kleiner v Ross (No 2) [2009] QDC 239 at [29].

[40] Para [26] submissions for the Applicants.

Close

Editorial Notes

  • Published Case Name:

    Nebo Service Centre Pty Ltd v Maund

  • Shortened Case Name:

    Nebo Service Centre Pty Ltd v Maund

  • MNC:

    [2017] QMC 5

  • Court:

    QMC

  • Judge(s):

    Lee

  • Date:

    12 May 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
180 Capital Finance Pty Ltd v Coomer [2010] QSC 116
3 citations
Jump To
Cite 1 - [2010] QSC 116
Cite 2 - [2010] QSC 116
Cite 3 - [2010] QSC 116
Blomley v Ryan (1954) 99 CLR 362
1 citation
Jump To
Cite 1 - (1954) 99 CLR 362
Burnet v Francis Industries PLC [1987] 1 WLR 802
1 citation
Jump To
Cite 1 - [1987] 1 WLR 802
Coca-Cola Financial Corporation v Finsat International Ltd (1998) QB 43
1 citation
Jump To
Cite 1 - (1998) QB 43
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
1 citation
Jump To
Cite 1 - (1983) 151 CLR 447
Continental Illinois National Bank & Trust Co of Chicago v Papanicolaou [1986] 2 Lloyds Rep. 441
1 citation
Jump To
Cite 1 - [1986] 2 Lloyds Rep. 441
Daewoo Australia P/L v Porter Crane Imports P/L t/a Betta Machinery Sales [2000] QSC 50
2 citations
Jump To
Cite 1 - [2000] QSC 50
Cite 2 - [2000] QSC 50
Harvey v Phillips (1956) 95 CLR 235
1 citation
Jump To
Cite 1 - (1956) 95 CLR 235
Kleiner v Ross (No 2) [2009] QDC 239
4 citations
Jump To
Cite 1 - [2009] QDC 239
Cite 2 - [2009] QDC 239
Cite 3 - [2009] QDC 239
Cite 4 - [2009] QDC 239
Lee v Abedian [2017] QSC 22
2 citations
Jump To
Cite 1 - [2017] QSC 22
Cite 2 - [2017] QSC 22
Lu Simon Builders Pty Ltd v H D Fowles & Ors (1992) 2 VR 189
1 citation
Jump To
Cite 1 - (1992) 2 VR 189
Paradise Grove Pty Ltd v Stubberfield[2002] 2 Qd R 612; [2002] QSC 3
2 citations
Jump To
Cite 1 - [2002] QSC 3
Cite 2 - [2002] QSC 3
Rockett v The Proprietors of “The Sands” BUP 82[2002] 1 Qd R 307; [2001] QCA 99
3 citations
Jump To
Cite 1 - [2001] QCA 99
Cite 2 - [2001] QCA 99
Cite 3 - [2001] QCA 99
State Bank of Victoria v Parry (1989) WAR 240
5 citations
Jump To
Cite 1 - (1989) WAR 240
Cite 2 - (1989) WAR 240
Cite 3 - (1989) WAR 240
Cite 4 - (1989) WAR 240
Cite 5 - (1989) WAR 240
Woods v Sheriff of Queensland (1895) 6 Q.L.J. 163
1 citation
Jump To
Cite 1 - (1895) 6 Q.L.J. 163

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.