Café Du Liban Pty Ltd v Bespoke Garage Pty Ltd

[2018] NSWSC 814

Supreme Court

New South Wales

Medium Neutral Citation:

Café Du Liban Pty Ltd v Bespoke Garage Pty Ltd [2018] NSWSC 814

Hearing dates:

24 May 2018

Date of orders:

24 May 2018

Decision date:

24 May 2018

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Extend the time fixed by rule 37.3(4) of Uniform Civil Procedure Rules 2005 (NSW) for the filing of an objection to instalment order to 13 April 2018.

(2) Declare that by rule 37.7 the instalment order made by the Registrar on 28 March 2018 has ceased to have effect.

(3) The judgment debtor is to pay the judgment creditor’s costs of the application.

Catchwords:

CIVIL PROCEDURE – appeal - reduction of judgment liability - application for instalment order made - judgment creditor failed to file objection in time - application for extension of time to file objection - steps instituted to enforce judgment - service of bankruptcy notice - statutory demand for payment of debt - neither instalment paid - order to extend time - judgment debtor to pay costs of application

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 37.3, 37.7

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

Café Du Liban Pty Limited (Plaintiff/Respondent)
Bespoke Garage Pty Limited (Defendant/Applicant)

Representation:

Counsel:
P Kassen (Plaintiff/Respondent)
P Matthews (Defendant/Applicant)

  Solicitors:
A R Conolly & Company (Defendant/Applicant)

File Number(s):

2016/276055

Ex tempore Judgment

1. This matter came before this Court as an appeal from the Local Court which was heard by Justice Beech-Jones. The judgment debtor was the plaintiff on the appeal. The appeal was only partially successful, resulting in the reduction of the judgment made in the Local Court.

2. Rather than remitting the matter, after receiving further submissions, his Honour entered judgment in favour of the judgment creditor on 20 September 2017 in the sum of $40,798.90. The lump sum costs order made in the Local Court was undisturbed. The total indebtedness of the judgment debtor to the judgment creditor is now in excess of $80,000, including that costs order.

3. The judgment debtor made application for an instalment order under the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and that order was made by the Registrar under r 37.3 on 20 April 2018. The amount of the instalment order is $1,200 per month and the first payment was due on 20 April 2018, the second being due on 20 May 2018.

4. Under r 37.3 the judgment creditor had a period of 14 days to file an objection to the order made by the Registrar. Upon the filing of such an order the matter of the instalment application is referred to the Court for determination.

5. The judgment creditor was late in filing its Notice of Objection and now seeks relief in terms of an order extending the time for filing its objection. The last day for filing the objection under the UCPR was 11 April 2018 and the application was not filed until 13 April 2018, that is to say it was two days late.

6. I should say, from her affidavit read in this application, the solicitor for the judgment creditor, Elizabeth Ramsay, when the instalment application was made, had already taken steps to enforce the judgment by way of service of a bankruptcy notice on the individual judgment debtor, and a creditor’s statutory demand for payment of the debt on the corporate judgment debtor.

7. It seems to me that the shortness of time between the expiration of the time under the UCPR for filing the objection and the time when it was actually filed is such that I should make the order extending the time for filing the Notice of Objection to 13 April 2018.

8. But, before making any orders, I also refer to r 37.7 which is in the following terms:

9. Subject to any agreement referred to in rule 37.1, an instalment order ceases to have effect if the judgment debtor fails to comply with the order.

10. As I have said in my recitation of the facts, the first instalment was due on 20 April, the second on 20 May, and neither instalment has been paid. It seems to me that in those circumstances it would be otiose to consider the judgment creditor’s objection on its merits.

11. However that may be, there is a strong argument that the instalment order in the sum of $1,200, given the size of the debt and the institution of other steps to enforce the debt, was insufficient, bearing in mind that the purpose of an instalment order is to vouchsafe the payment of the judgment debt and protect the interest of the judgment creditor.

12. I should say, that the judgment debtor’s former solicitor appeared before me on Monday as a matter of courtesy to confirm that his instructions had been withdrawn and that he had been informed that the plaintiff was seeking other representation. It was on that basis that I stood the matter over for mention today.

13. Mr Kassen, solicitor, appeared today to inform me that he had been contacted by the judgment debtor yesterday afternoon but that no instructions had been given or accepted for him to appear. Again, he was here as a matter of courtesy. He said he had a medical certificate indicating that the plaintiff was in hospital ill. He did not tender the certificate. But I am prepared to accept that is the present situation.

14. I note from the evidence that I have read , which includes the affidavit that was lodged at the Registry in support of the instalment order, that the named personal judgment debtor has the support of her former husband and that the situation is not one where I would infer that illness of itself precluded the judgment debtor from having representation to argue the case today.

15. However that may be, it simply does not matter because the effect of the UCPR is that the instalment order that had been made now has ceased to have effect and I do not propose to deal with the objection on its merits.

16. My orders are:

1. Extend the time fixed by rule 37.3(4) of Uniform Civil Procedure Rules 2005 (NSW) for the filing of an objection to instalment order to 13 April 2018.

2. Declare that by rule 37.7 the instalment order made by the Registrar on 28 March 2018 has ceased to have effect.

3. The judgment debtor is to pay the judgment creditor’s costs of the application.

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Decision last updated: 01 June 2018