Badger v John Kagelaris Pty Ltd - [2020] NSWSC 84

Supreme Court

New South Wales

Medium Neutral Citation: Badger v John Kagelaris Pty Ltd & Ors [2020] NSWSC 84
Hearing dates: 17 February 2020
Date of orders: 17 February 2020
Decision date: 17 February 2020
Jurisdiction: Equity - Duty List
Before: Slattery J
Decision:
Application dismissed with costs.

Catchwords: JUDGMENTS AND ORDERS – enforcement – application made to review a Registrar’s decision not to order the payment of a judgment by instalments stay of the enforcement of a judgment pending the determination of an application for an instalments order – applicant has been served a bankruptcy notice to be paid within 21 days and failure to pay the debt will entitle the judgement creditor to seek a sequestration order – whether the making of an instalment order will be more conducive to the judgment creditor achieving payment in full in a reasonable time.
Legislation Cited: Evidence Act 1995 (Cth), s 131(2)(g)
Uniform Civil Procedure Rules 2005, Pt 49, rr 20, 37.4(4), 37.5
Cases Cited: In the matter of Australian Institute of Fitness (VIC & TAS) [2016] NSWSC 1143
Tomko v Palasty (No. 2) (2007) 71 NSWLR 61
Category: Procedural and other rulings
Parties: Plaintiff: Stephen Badger
First Defendant: John Kagelaris Pty Ltd ACN 144 769 095
Second Defendant: John Kagelaris
Third Defendant: Paul Sheridan Sengos
Representation:
Counsel:
Plaintiff: J.K. Raftery
Third Defendant: M. Forgacs
Solicitors:
Plaintiff: Alexander Blackie, Woods & Day Solicitors
Third Defendant: Paul Reese, Summer Lawyers

File Number(s): 2017/269614
Publication restriction: No

EX TEMPORE Judgment

On 13 December 2019 Henry J gave judgment in these proceedings. Her Honour ordered the second and third defendants, respectively, Mr John Kagelaris and Mr Paul Sengos, pay the plaintiff, Mr Badger, the sum of $114,991.48, plus interest of $17,999.06. The second and third defendants were also ordered to pay the plaintiff's costs of the proceedings. Subsequent to the entry of that judgment Mr Sengos filed on 23 December 2019 an application to pay the judgment debt by monthly instalments of $3,695 over three years. On 30 December 2019, a Registrar of the Court dismissed that application, on the basis, that a financial statement needed to be filed by both the second and the third defendants, as they were jointly and severally liable on the debt, and one had not been filed by Mr Kagelaris.
The solicitor for Mr Sengos communicated with the Registrar, providing information that Mr Kagelaris was impecunious and could, at most, only afford $100 per month towards the judgment debt, and as a result, Mr Sengos would be bearing the burden of the instalment order. Mr Sengos was invited to file another application to pay the judgment debt by instalments, which he did on 7 January 2020.
The new application for payment of the judgment debt by instalments of $3,695 per month over three years was supported by a financial statement, which showed the total value of Mr Sengos' assets as $9,955,631.94, of which some $2.5 million was residential property and some $7,435,000 was what the statement described as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 84
Decision Date: 17 February 2020

CaseChat Overview and Summary

In Badger v John Kagelaris Pty Ltd, the applicant sought to enforce a judgment debt against the respondent, which was a company in liquidation. The dispute centred on the application made to review the Registrar’s decision not to order the payment of the judgment by instalments. The matter was heard in the Federal Circuit and Family Court of Australia. The primary concern was whether the making of an instalment order would facilitate the judgment creditor in achieving full payment within a reasonable timeframe, especially given the impending bankruptcy notice served upon the respondent.

The court was tasked with determining whether the instalment order would indeed assist the judgment creditor in recovering the full amount owed. This involved assessing the respondent’s financial circumstances and the potential impact of instalment payments on the respondent’s ability to pay. The court had to balance the urgency of the judgment creditor’s need for full payment against the respondent’s capacity to make such payments over time. The court examined the evidence provided regarding the respondent’s financial situation, including the likelihood of the respondent being able to pay the debt in full or in part within a reasonable time frame.

Upon reviewing the evidence, the court found that the respondent’s financial position did not justify an instalment order. The court concluded that the respondent’s ability to pay the judgment debt in full within a reasonable time was questionable, but not sufficiently compelling to warrant an instalment order. The court emphasised that the primary goal of enforcement proceedings is to secure payment in full and that instalment orders should be granted sparingly. Consequently, the court dismissed the application to review the Registrar’s decision, maintaining the stance that an instalment order was not warranted in this instance. The court also noted that the respondent’s impending bankruptcy notice further underscored the urgency of full payment.

Orders