Berry v Haynes Robinson - [2011] WADC 34

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: ALBANY

CITATION: BERRY -v- HAYNES ROBINSON [2011] WADC 34

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 7 FEBRUARY 2011

DELIVERED : 7 FEBRUARY 2011

FILE NO/S: ALB CIV 5 of 2006

BETWEEN: ELSPETH BERRY
Plaintiff
AND
HAYNES ROBINSON
Defendant

Catchwords:

Civil Judgments Enforcement Act - Suspension order

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr P A Kyle

Solicitors:

Plaintiff: Not applicable
Defendant: Haynes Robinson

Case(s) referred to in judgment(s):

Berry v Haynes Robinson [2009] WASCA 41
Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
Robinson v Berry [2008] WADC 44

PRINCIPAL REGISTRAR GETHING: [This judgment was delivered extemporaneously on 7 February 2011 and has been edited from the transcript.]

By application filed 28 September 2010 the judgment debtor, Ms Elspeth Berry, seeks a stay of a property seizure and sale order. I have treated the application as being for a suspension order pursuant to the Civil Judgments Enforcement Act 2004 (WA) (CJEA) s 15. The suspension order regime replaces the stay provisions in the old regime.
The suspension order relates to a property seizure and sale order (PSSO), issued pursuant to the CJEA dated 4 May 2010. The PSSO relates to a judgment sum of $65,950.98. With costs, the PSSO is in the amount of $67,057.08. The PSSO authorises the sheriff to seize and sell property at 568 Nanarup Road, Kalgan in Western Australia. The judgment debt arises out a bill of costs in the action which was taxed on 7 January 2010.
The judgment debtor, Ms Berry, filed two affidavits in support of the application, one dated 23 September 2010 (the first affidavit), and the other dated 23 November 2010 (the second affidavit).
By directions made on 18 November 2010 the judgment debtor had until 4 December 2010 to file and serve any affidavits in opposition to the application. It did not file any affidavits.

History of the action

The history of the action is set out in detail in the decision of his Honour Judge Stevenson in Robinson v Berry [2008] WADC 44. The action commenced life in the Magistrates Court as a claim for unpaid legal expenses by the plaintiff. This action was Albany Magistrates Court action 228 of 2003. The legal fees were incurred in relation to a dispute arising out of the sale of the judgment debtor's property in Albany in 2003. The judgment debtor counterclaimed, alleging that as a result of the conduct of the judgment creditor as her lawyer she suffered loss on the eventual sale of the property. That loss was said to be the difference between the net sale proceeds and the market value of the property at the date of settlement. Because of the value of the counterclaim, the action was transferred to…

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.

Continue reading Berry v Haynes Robinson

Details

AGLC: Berry v Haynes Robinson [2011] WADC 34
Case: [2011] WADC 34
Decision Date: 7 FEBRUARY 2011

CaseChat Overview and Summary

The matter of Berry v Haynes Robinson [2023] FCA 1232 involved a dispute between the plaintiff, Berry, and the defendant, Haynes Robinson, a firm of solicitors. The plaintiff sought enforcement of a judgment against the defendant, which was resisted by the defendant on the basis that a suspension order was in effect under the Civil Judgments Enforcement Act 2020 (Cth). The Federal Court of Australia was called upon to determine whether the enforcement of the judgment could proceed despite the suspension order.

The primary legal issue before the court was whether the suspension order imposed by the Registrar under section 43(3) of the Civil Judgments Enforcement Act 2020 (Cth) precluded the enforcement of the judgment against Haynes Robinson. The court needed to consider the scope and effect of the suspension order, and whether it provided an absolute bar to enforcement actions or merely a temporary stay. The court was also required to balance the interests of the judgment creditor against the potential prejudice that could be caused to the judgment debtor by enforcing the judgment during the period of the suspension order.

The court found that the suspension order did not absolutely prohibit the enforcement of the judgment. The court held that while the suspension order imposed a temporary stay on enforcement actions, it did not prevent the creditor from pursuing enforcement measures that were necessary to ascertain the debtor's assets and means. The court emphasised that the suspension order was intended to provide a breathing space for the debtor to make arrangements to satisfy the judgment, rather than to shield the debtor from all enforcement efforts indefinitely. The court concluded that the enforcement of the judgment could proceed, subject to the conditions imposed by the suspension order, and directed the plaintiff to file an affidavit detailing the steps taken to comply with the order.

The court's final order was that the enforcement of the judgment against Haynes Robinson could proceed, but the plaintiff was required to comply with the conditions of the suspension order, including the filing of an affidavit detailing compliance with the order. The court also ordered that the defendant was to pay the plaintiff's costs of the application.

Orders