Big Country Developments Pty Ltd v Peter Griffiths (No 5) - [2020] NSWSC 865

Supreme Court

New South Wales

Medium Neutral Citation: Big Country Developments Pty Ltd v Peter Griffiths (No 5) [2020] NSWSC 865
Hearing dates: On the papers
Date of orders: 3 July 2020
Decision date: 03 July 2020
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
Application to set aside deputy registrar’s decision that judgment debt be paid by instalments dismissed

Catchwords:
CIVIL PROCEDURE – payment of judgment debt – application to set aside decision of deputy registrar to pay judgment debt by instalments – hearing de novo – where half of judgment debt now paid – whether to permit payment of balance by instalments

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Big Country Developments Pty Ltd v Peter Griffiths (No 4) [2019] NSWSC 1791
Hellier Capital Pty Limited v Richard Albarran [2009] NSWSC 403
In the matter of Australian Institute of Fitness (VIC & TAS) [2016] NSWSC 1143

Category: Procedural and other rulings
Parties: Big Country Developments Pty Ltd (Plaintiff/Applicant)
Adrian Duncan (Fourth Defendant/Respondent)
Representation:
Counsel:
J O’Sullivan (Plaintiff/Applicant)
B F Katekar with Q M Noakhtar (Fourth Defendant/Respondent)
Solicitors:
& Legal (Plaintiff/Applicant)
O’Neill Partners (Fourth Defendant/Respondent)

File Number(s): 2011/404546

Judgment

The background to this matter is set out in the judgment of Ball J in Big Country Developments Pty Ltd v Peter Griffiths (No 4). [1]
1. [2019] NSWSC 1791.
On 7 September 2015, the plaintiff, Big Country Developments Pty Ltd, obtained a judgment against the fourth defendant, Mr Adrian Duncan, in the sum of $664,613.
The matter before Ball J was an application by Mr Duncan to set aside an order made by the Deputy Registrar dismissing Mr Duncan’s application to pay that judgment by instalments. Mr Duncan’s application would have resulted in the debt being paid over a period of four years.
Ball J dismissed Mr Duncan’s application, principally because his Honour:

was not satisfied that the proposed payment plan would result in the debt being paid within a reasonable time[2] ; and

concluded that there was no reason to believe that Mr Duncan would be able to comply with his proposed payment plan. [3]
2. At [11].
3. At [16].

Since then, there have been a number of developments.
On 18 December 2019 Mr Duncan made a further application for an instalment order. That application was refused on 23 December 2019.
On 15 January 2020 Mr Duncan applied for a further instalment order.
An instalment order was made on 30 January 2020 that Mr Duncan pay:

$300,000 in respect of the judgment by 20 February 2020;

$12,000 per month from 15 March 2020;

$19,700 per month from 15 March 2021; and

$21,700 per month from 15 March 2022.

Mr Duncan failed to pay the first instalment of $300,000 and the 30 January 2020 order thereby ceased to be effective. [4]
4. Uniform Civil Procedure Rules 2005 (NSW) r 37.7.
On 16 March 2020 Mr Duncan applied for a further instalment order.
On 7 April 2020 an instalment order was made requiring Mr…

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 865
Decision Date: 03 July 2020

CaseChat Overview and Summary

Big Country Developments Pty Ltd sought to enforce a judgment debt against Peter Griffiths. The dispute involved the terms under which the judgment debt was to be paid. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether to permit the remaining balance of the judgment debt to be paid by instalments, given that half of the debt had already been settled. This issue required the court to balance the creditor's rights to enforce their judgment with the debtor's capacity to pay.

The court noted that the debtor had already demonstrated the ability to meet part of the judgment by making payments. The creditor argued that the full judgment should be paid immediately, while the debtor contended that instalments were necessary due to financial constraints. The court considered the principles of fairness and the purpose of the Supreme Court Rules, which allow for instalment payments in appropriate circumstances. It was observed that the Rules aim to achieve justice between the parties and to ensure that a debtor who is able to pay is not allowed to frustrate the enforcement of a judgment.

In its decision, the court held that it was appropriate to permit the debtor to pay the remaining balance by instalments. The court found that the debtor had shown sufficient ability to meet the payments and that an instalment arrangement would not unduly prejudice the creditor. The decision was based on the recognition that instalment payments could facilitate the enforcement of the judgment without causing undue hardship to the debtor. The court ordered that the remaining balance of the judgment debt be paid by instalments as agreed upon by the parties, subject to review if the circumstances change.

Orders