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), 37.5Cases Cited: In the matter of Australian Institute of Fitness (VIC & TAS) [2016] NSWSC 1143
Tomko v Palasty (No. 2) (2007) 71 NSWLR 61Category: 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 SengosRepresentation: Counsel:
Solicitors:
Plaintiff: J.K. Raftery
Third Defendant: M. Forgacs
Plaintiff: Alexander Blackie, Woods & Day Solicitors
Third Defendant: Paul Reese, Summer Lawyers
File Number(s): 2017/269614 Publication restriction: No
EX TEMPORE Judgment
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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.
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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.
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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…
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- Case
- [2020] NSWSC 84
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
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Decision
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