C Tina Pty Ltd v Barham-Floreani - [2019] VSC 819

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2017 02184

BETWEEN:

C TINA PTY LTD (ACN 161 723 100)	Plaintiff/ Defendant by Counterclaim
- and -
JENNIFER BARHAM-FLOREANI	Defendant/ Plaintiff by Counterclaim

S CI 2017 03520

IN THE MATTER OF 104 HOLDINGS PTY LTD (ACN 169 723 559)

BETWEEN:

JENNIFER BARHAM-FLOREANI	First Plaintiff
104 HOLDINGS PTY LTD	Second Plaintiff
- and -
CHRISTINA VOUZAS C TINA PTY LTD (ACN 161 723 100)	First Defendant Second Defendant

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JUDGE:	RIORDAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2019
DATE OF RULING:	13 December 2019
CASE MAY BE CITED AS:	C Tina Pty Ltd v Barham-Floreani
MEDIUM NEUTRAL CITATION:	[2019] VSC 819

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JUDGMENT DEBT RECOVERY – Review of refusal of debtor’s application for an instalment order – Principles to be applied – Review dismissed.

PRACTICE AND PROCEDURE – Application for leave to rely on further affidavit on the review hearing pursuant to r 84.10 of the Supreme Court (General Civil Procedure) Rules 2015 – Policy considerations discussed – Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Defendant in S CI 2017 02184 and the Plaintiffs in S CI 2017 03520	D C Harrison	Kearney Guy Legal
For the Plaintiff in S CI 2017 02184 and the Defendants in S CI 2017 03520	W J Drent	Logie-Smith Lanyon

HIS HONOUR:

By notice of objection filed 25 October 2019 in each of proceeding S CI 2017 02184 (‘the first proceeding’) and S CI 2017 03520 (‘the second proceeding’), Jennifer Barham-Floreani (‘the applicant’ and ‘judgment debtor’) objects to the refusal on 11 October 2019 of her application for an order for payment of judgment debts by instalments under s 6 of the Judgment Debt Recovery Act 1984 (Vic) (‘the Act’).

Background

On 21 September 2018, Judicial Registrar Matthews ordered, in the first proceeding:

The defendant pay the plaintiff's costs thrown away by reason of the further amended defence and counterclaim, to be taxed forthwith in default of agreement and payable forthwith.
The plaintiff has leave to tax forthwith the costs orders in its favour dated 4 September 2017, 10 April 2018 and 18 May 2018, to be payable forthwith.

On 12 October 2018, Judicial Registrar Matthews made self-executing orders in the second proceeding that, in the event of non-compliance with specified orders, ‘the proceeding be dismissed and the plaintiffs are to pay the defendants’ costs of the proceeding on a standard basis’.

On 26 August 2019, the costs the subject of the order of 21 September 2018 in the first proceeding, were taxed and allowed in the sum of $14,045.

On 27 August 2019, the costs the subject of the order of 12 October 2018 in the second proceeding, were taxed and allowed in the sum of $43,960.

By an Application for Order for Payment of Judgment Debt by Instalments filed in each matter on 16 September 2019, the applicant applied pursuant to s 6 of the Act for instalment orders with respect to the outstanding…

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] VSC 819
Decision Date: 13 December 2019

CaseChat Overview and Summary

C Tina Pty Ltd, the creditor, sought an instalment order to recover a judgment debt from Barham-Floreani, the debtor, and later sought a review of the refusal of that application. The matter was heard in the Supreme Court of New South Wales. The creditor argued that the refusal of the instalment order application was incorrect and sought an order for the debtor to pay the costs of the review application. Additionally, the creditor applied for leave to rely on further affidavit evidence on the review hearing.

The court had to determine whether the refusal of the instalment order was justified, and whether leave should be granted to rely on further affidavit evidence. The creditor contended that the refusal of the instalment order was incorrect and sought the costs of the review application. The debtor opposed the review and costs application, and also opposed the creditor's application for leave to rely on further affidavit evidence. The court had to weigh the principles of justice and fairness against the policy considerations when deciding whether to grant leave for the creditor to rely on further affidavit evidence.

The court found that the refusal of the instalment order was correct and dismissed the review application. The court considered the principles of justice and fairness in reviewing the refusal of the instalment order. The court also considered the policy considerations when deciding whether to grant leave to rely on further affidavit evidence. The court found that the policy considerations did not outweigh the principles of justice and fairness and granted leave for the creditor to rely on further affidavit evidence. The creditor's application for costs was dismissed.

The court dismissed the review application and denied the creditor's application for costs. The court granted leave for the creditor to rely on further affidavit evidence.

Orders