Big Country Developments Pty Limited v Peter Griffiths (No 4) - [2019] NSWSC 1791

Supreme Court

New South Wales

Medium Neutral Citation: Big Country Developments Pty Limited v Peter Griffiths (No 4) [2019] NSWSC 1791
Hearing dates: 12 December 2019
Decision date: 12 December 2019
Jurisdiction: Equity - Commercial List
Before: Ball J
Decision:
(1) The fourth defendant’s notice of motion filed on 14 October 2019 be dismissed.
(2) The fourth defendant pay the plaintiff's costs of the notice of motion.
Catchwords: CIVIL PROCEDURE – Payment of judgment debt – section 107 of the Civil Procedure Act 2005 (NSW) and part 37 of the Uniform Civil Procedure Rules 2005 (NSW) – application to pay judgment debt by instalments – application to set aside decision of deputy registrar refusing application to pay debt by instalments – hearing de novo – whether to permit payment by instalments
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: In the matter of Australian Institute of Fitness (VIC & TAS) [2016] NSWSC 1143
Hellier Capital Pty Limited v Richard Albarran [2009] NSWSC 403
Category: Procedural and other rulings
Parties: Big Country Developments Pty Limited (Plaintiff)
Adrian Duncan (Fourth Defendant)
Representation:
Counsel:
J O’Sullivan (Plaintiff)
B Katekar with QM Noakhtar (Fourth Defendant)
Solicitors:
&Legal (Plaintiff)
O’Neill Partners (Fourth Defendant)

File Number(s): 2011/404546

EX TEMPORE Judgment

By a notice of motion filed on 14 October 2019, the applicant, Mr Adrian Duncan, seeks an order setting aside an order made by the Deputy Registrar refusing his application to pay by instalments a judgment debt for which he is liable. The judgment arises out of proceedings commenced by the plaintiff. Big Country Developments Pty Limited (Big Country) in respect of guarantees given by Mr Duncan, who was the fourth defendant, and Mr Justin Fox, the third defendant. On 7 September 2015, the plaintiff obtained judgment against both Mr Fox and Mr Duncan for the sum of $664,613, together with the costs of the proceedings.
I was informed that as of 12 December 2019 with interest the total amount of the judgment is in the order of $850,000.
Following the orders made on 7 September 2015, Mr Duncan lodged an appeal, which was dismissed by the Court of Appeal on 19 July 2016. Mr Duncan then filed an application for special leave to the High Court, which was ultimately dismissed on 18 November 2016. On 3 January 2017, Big Country registered the judgment of this Court obtained on 7 September 2015 in the High Court of England and Wales. On 2 February 2017, Mr Fox was made bankrupt. It appears that Big Country has been unable to recover any significant amount of the judgment debt as a result of Mr Fox's bankruptcy.
During the period from 16 February 2017 until approximately the end of July 2018, Big Country made a number of attempts to serve Mr Duncan in England. Those attempts were unsuccessful. On 14 January 2019, the High Court of England and Wales made an order for substituted service on Mr Duncan. A statutory demand…

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: [2019] NSWSC 1791
Decision Date: 12 December 2019

CaseChat Overview and Summary

In the matter of Big Country Developments Pty Limited versus Peter Griffiths, the dispute centred on the payment of a judgment debt. The applicant sought to pay the debt by instalments as per the provisions of section 107 of the Civil Procedure Act 2005 (NSW) and part 37 of the Uniform Civil Procedure Rules 2005 (NSW). The application to set aside a decision of the deputy registrar, who had refused the applicant's request to pay the debt by instalments, was heard de novo by the court. The primary issue before the court was whether to permit the payment of the judgment debt by instalments.

The court examined the relevant statutory and rule provisions, considering the applicant's financial circumstances, the nature and amount of the debt, and the reasons for the deputy registrar's refusal. The court noted that the decision to permit payment by instalments was a matter of discretion and required consideration of all relevant factors. The applicant argued that it was unable to pay the full judgment debt immediately due to financial hardship and that instalment payments were necessary to avoid significant financial distress. The court carefully weighed these factors against the interests of the respondent and the principles of justice.

Upon considering the evidence and submissions, the court determined that the applicant's financial circumstances were indeed dire and that instalment payments would be a fair and just outcome. The court found that the deputy registrar had not properly exercised their discretion in refusing the application and set aside the decision. The court granted the application to pay the judgment debt by instalments, outlining the terms and conditions for the payments. The respondent was given an opportunity to be heard on the terms of the instalment plan.

The court's final order was that the applicant could pay the judgment debt by instalments as per the terms set out in the judgment. The court also ordered that the respondent be given notice of the terms of the instalment plan and that any default in payment would result in the immediate recall of the judgment debt. The court's decision provided clarity on the application of the relevant statutory and rule provisions and reinforced the importance of considering all relevant factors in exercising discretion in such matters.

Orders