Carole Lynn Price v Keith Anthony O'Grady

CAROLE LYNN PRICE v KEITH ANTHONY O’GRADY [2005]
ACTSC 65 (13 July 2005)

EX TEMPORE JUDGMENT

No SC 843 of 2001

Judge: Crispin J
Supreme Court of the ACT
Date: 26 July 2005

IN THE SUPREME COURT OF THE       )
  )          No SC 843 of 2001
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:CAROLE LYNN PRICE
Plaintiff

AND:KEITH ANTHONY O’GRADY
Defendant

ORDER

Judge:  Crispin J
Date:  13 July 2005
Place:  Canberra

THE COURT ORDERS THAT:

the Writ of fieri facias be set aside.

This is an application to set aside a Writ of fieri facias granted on the application of the plaintiff to enforce payment of money then said to have been outstanding under a judgment made by consent on 22 October 2002.

The orders made on that day gave effect to a settlement of proceedings commenced by the plaintiff against the defendant under the Domestic Relationships Act 1994. The orders made by consent included an order that the defendant pay to the plaintiff the sum of $45,000.00 and that figure was referred to in subsequent orders as the “settlement sum”.

Order 2 provided, and I quote:

That the Defendant pay the settlement sum at the rate of $750.00 per month, payable on the 15th day of each month, by direct deposit into the Plaintiff’s [bank account] of such payments falling due on or before 15 September 2002 PROVIDED HOWEVER that the Defendant may make additional lump sum payments to the Plaintiff which shall reduce the balance outstanding to the Plaintiff pursuant to these Orders.

Order 3 provided, and again I quote:

That no interest shall accrue on the settlement sum provided that all payments are made strictly in accordance with Order 2 hereof, otherwise interest shall accrue at the rate prescribed by the ACT Supreme Court Act 1933, as amended.

The succeeding orders, numbered 4 to 10 inclusive, provided for the transfer of certain property between the parties and for the parties to make available certain other property for collection. The orders also provided for each party to pay his or her own costs and granted each liberty to apply in relation to the implementation or enforcement of the orders on seven days notice to the court and to the other party.

In support of the application for the Writ of fieri facias, the plaintiff filed an affidavit sworn 19 August 2004 which annexed a copy of the consent orders, referred to orders (2) and (3), and asserted that the defendant had “not strictly complied with or adhered to the terms of the instalment order” made in the proceedings. The plaintiff deposed to the fact that the defendant had made only a number of payments amounting in all to the sum of $10,750.00, and in paragraph (7) said, “The amount of principal that remains outstanding to me as at the date of this my affidavit is $34,250.00”. In paragraph (8), she stated that “due to the defendant’s default, interest accrues on so much of the settlement sum that remains…

CaseChat Overview and Summary

Carole Lynn Price, the plaintiff, filed an application to set aside a Writ of fieri facias against Keith Anthony O'Grady, the defendant. The writ was issued to enforce payment of money under a consent judgment made on 22 October 2002. The judgment required the defendant to pay the plaintiff $45,000 in instalments of $750 per month, with additional lump sum payments permitted to reduce the balance outstanding. The plaintiff claimed that the defendant had not adhered to the payment terms and sought to enforce payment of the outstanding amount, including interest. The defendant argued that an agreement had been reached to defer payments for a period of twelve months at an interest rate of 11%.

The legal issues before the court were whether the parties had indeed reached an agreement to defer payments and, if so, what the effect of such an agreement was on the defendant's obligation to make monthly instalments. The court also had to consider the interpretation of the consent orders, specifically whether additional payments should be treated as reductions in principal or as instalments. Furthermore, the court needed to determine whether the orders included an implied term that would make the entire outstanding balance immediately due in the event of a default in payment.

The court found that the defendant's evidence was credible and preferred it over the plaintiff's. The court held that the parties had indeed entered into an agreement to defer payments for twelve months at an interest rate of 11%. The court rejected the plaintiff's interpretation of the consent orders, concluding that additional payments could be used to offset both the principal and any overdue instalments. The court also found that there was no implied term in the orders that would make the entire outstanding balance immediately due upon default.

Given these findings, the court concluded that the writ should be set aside as the debt claimed in the writ was not due and payable at the relevant time. The court noted that the parties had now reconciled their accounts, save for some minor questions regarding interest, which the court did not address. The court set aside the writ and left the issue of interest to be resolved between the parties or in future proceedings.

The final order of the court was that the Writ of fieri facias be set aside.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established