Cianiup Pty Ltd v O'Rourke - [2006] WADC 122

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: CIANIUP PTY LTD -v- O'ROURKE & ORS [2006] WADC 122

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 29 MAY 2006

DELIVERED : 16 AUGUST 2006

FILE NO/S: CIV 2900 of 1997

BETWEEN: CIANIUP PTY LTD
Judgment Creditor
AND
BARRRY DANIEL O'ROURKE
OLIVER DOUGLAS
LAWRENCE JOHN SCANLAN
Judgment Debtors

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application for leave to execute under a judgment - Assignment of Judgment - Evidence of alternative remedy available to applicant

Legislation:

Civil Judgments Enforcement Act 2004

Property Law Act 1969

Result:

Decision pending

Representation:

Counsel:

Judgment Creditor          :    Mr G D Cobby
Judgment Debtor (O'Rourke)     :    No appearance
Judgment Debtor (Douglas)      :    Mr M Levitan
Judgment Debtor (Scanlan)       :    No appearance

Solicitors:

Judgment Creditor          :    Christensen Vaughan
Judgment Debtors (O'Rourke)    :    Deacons
Judgment Debtor (Douglas)      :    Melvin Levitan
Judgment Debtor (Scanlan)       :    Deacons

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Blair v Curran (1939) 62 CLR 464
Craven v Smith (1869) LR 4 Ex CH 146
Dennehy v Reasonable Endeavours Pty Ltd [2001] VSC 447
Duer v Frazer [2001] 1 All ER 249
Jackson v Goldsmith (1950) 81 CLR 446
Kuligowski v Metrobus (2004) 220 CLR 363
Macquarie Bank Limited v national Mutual Life Association of Australasia Limited (1996) 40 NSWLR 543
National Westminister Bank plc v Powney [1990] 2 All ER 416
Nominal Defendant v Manning (2000) 50 NSWLR 139
Onerati v Phillips Constructions Pty Ltd (1989) 16 NSWLR 730
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
Todd v Novotny [2000] WASC 308
Van Lynn Developments Ltd v Pelias Construction Co Ltd [1968] 3 All ER 824

DEPUTY REGISTRAR HARMAN: By her application filed on 31 March 2006 Shirley Lynette Scanlan seeks leave to execute under the judgment of 7 October 1997 against the second and third named judgment debtors. That judgment in favour of Cianiup Pty Ltd was expressed in the following terms:
"The defendant do pay to the plaintiff:
(a) The sum of $73,312.47;
(b)Interest at the rate of 18 per cent per annum calculated from 12 April 1997 to 7 October 1997 in the sum of $6,434.70;
(c)Costs of this action and of this application including costs reserved to be taxed;"
Despite those terms, at least for the purposes of the application it is common ground that the plaintiff had been entitled to judgment against each of the three defendants.
The relevant parts of s 13(1) of the Civil Judgments Enforcement Act 2004 are as follows:
"(1)Leave of the court must be obtained before an order may be made under this Act to enforce a judgment –
(a)if 6 years have elapsed since the judgment took effect;
….
(d)if the person seeking to enforce the judgment was not personally a party to the case in which the judgment was given;
…."
Being required to seek leave, the applicant carries the onus of persuading the court that it is appropriate to make an order under s 13(2). It is as follows:
"(2)On an application for leave under subsection (1), the court‑
(a)may give leave if it is satisfied that the person seeking to enforce the judgment is entitled to do so and that the person against whom the order is sought is liable to satisfy the judgment;
(b)may order the trial of any issue that needs to be decided in order to determine if the judgment may be enforced and, if it may be enforced, by whom and against whom; and
(c)may do so on terms as to costs or otherwise."
The applicant produced the deed dated 27 July 1998 whereby the interest of the judgment creditor in the judgment was assigned to her. The respondents are parties to that deed. By their execution of it they acknowledged receipt of notice of the assignment and confirmed that at the date of assignment the value of the debt was not less than $80,000.
In her affidavit of 7 September 2004 the applicant deposes that:
"1 On 27 July 1998 I signed a document styled Deed of Assignment …,
2.At no time since the execution of the Deed have the judgment debtors paid any part of the Judgment debt to me. For a short period of time the first named judgment debtor, Barry Daniel O’Rourke, was paying interest on the judgment debt to me. At no time did he make any payments towards the Judgment debt itself.
3.A sequestration order was made against Mr O'Rourke which prevents me from executing against him.
4.I have made repeated demands on the second named judgment debtor, Oliver Douglas, for payment of the judgment debt.
5.I have not made demand on, and do not seek leave to execute against the third named judgment debtor, Lawrence John Scanlan, who is my husband."
Paragraph 5 is inconsistent with the terms of the application before me however it both reflected the terms and was filed in support of the ex parte motion of 15 September 2004 whereby the applicant had sought leave under s 141 of the Supreme Court Act 1935 to execute against only the second named judgment debtor. On 24 September 2004 an order was made in the terms of that application.
On 27 February 2006 the respondent obtained an order setting aside the order of 24 September 2004 and dismissing the application under which it had been made. In that process he filed an affidavit of 5 December 2005 to which he annexed his affidavit of 1 December 2005 filed in the Federal Court of Australia in proceedings where he contested the applicant's bankruptcy notice. The applicant and her husband responded with their affidavits of 6 January 2006 to which the respondent in turn responded by his affidavit of 16 January 2006. The applicant filed a further affidavit of 17 February 2006.
On the whole of that evidence it emerged that the letters of the applicant to the respondent of 15 February and 21 October 2002 would account for the applicant's evidence that she had made repeated demands of the respondent for payment of the judgment debt.
Her explanation for what may be regarded as limited troubling of the respondent prior to 7 September 2004 is provided at pars 5 of each of her later affidavits. At that point in the first of those affidavits she deposes:
"I did not attempt to execute the Judgment against Douglas until 2004 because I believed that he did not have the money to pay. Douglas had written to me claiming that he could not pay the judgment debt. Around 2004 it was made known to me (I cannot remember by whom) that Douglas was involved in a venture called 'Aussie Cash'. I then took steps to execute the Judgment against him."
In his affidavit of 16 February 2006 the respondent highlights the inconsistency between that evidence and the fact that the correspondence that had prompted the letters that founded the applicant's belief had been addressed by the applicant to the respondent at Aussie Cash. In her last affidavit at par 4 the applicant adjusts the date when she was made aware of the respondent's involvement in that venture to 2002. That adjustment would generate a period in excess of 18 months when the applicant took no action despite being aware of that involvement by the respondent in Aussie Cash. As I understand the applicant's evidence post adjustment, it would allow for the perception that the applicant believed that the respondent was impecunious despite that involvement.
As it was the case that at any time prior to 24 September in the year 2004 execution was not available to her, presumably the steps taken in 2004 to execute against the respondent would have been taken on or after that date. What they were I do not know. I note that according to the respondent's affidavit of 1 December 2005 filed in the Federal Court of Australia, the relevant bankruptcy notice was served on him on 15 November 2005. Regardless of other considerations there appears to be a period of one year subsequent to September 2004, when the applicant failed to enforce the judgment.
At the time of assignment Cianiup Pty Ltd had issued a bankruptcy notice also attached to the respondent's affidavit that reveals a debt of $79,747.17. The notice expresses that it took into account the fact that the Judgment Debtors had not paid of any amount since the date of judgment. On my calculation it represents the value of the judgment on the date that it was entered. The letter of Cianiup's solicitors dated 27 July 1998 attached to the respondent's affidavit reveals that the assignment was conditional upon the judgment debtors each honouring cheques then in the hands of their client each for $500.00. What such payments represented I do not know.
At par 4 of her affidavit of 6 January 2006 the applicant deposes:
"In or around 31 July 1998 I issued an invoice to both Douglas and O'Rourke for fees and interest charged on the loan. I calculated the interest on the Loan for six months and then added all the fees I incurred in obtaining the Loan. I then divided the total by 6 to get a monthly payment figure."
The context that gives meaning to that evidence is provided by par 7 of her husband's affidavit of the same date by which he introduces evidence that she confirms at par 3 of her affidavit. It is as follows:
"7   Some one suggested that Shirley take out a loan to buy the Judgment from Cianiup.
9     Shirley and I discussed the matter. I suggested that she purchase the Judgment because the Judgment was a type of security.
10   Shirley told me that she would take out a Loan to purchase the Judgment.
13   I told Shirley of the agreement I had reached with Douglas and O'Rourke. She told me that she would go ahead and purchase the Judgment debt."
There is no evidence that the applicant did obtain a loan however on the flavour of all of the evidence and the absence of any contest it is irresistible that she did so.
The invoice which the applicant referred to is an annexure to the respondent's affidavit of 5 December 2005, the text of which is as follows:
DATE:  31 July 1998
IVOICE NO:               002
CONTRACT:             Interest On Australiana Debt
TO:  Mr Oliver Douglas
Equity Alliance Finance
8 Clive Street
WEST PERTH WA 6005
_______________________________________
FOR:    Fees and interest payable on the $80,000 loan
For the month 1-31 July 1998            $248.00
(this includes fees and all charges associated with the
loan spread over the six months of the loan)
TOTAL DUE & PAYABLE   $248.00
But for the date, invoice number and period to which they each relate it is in the same terms of seven subsequent invoices issued by the applicant to the respondent that he also annexes. Each of those invoices expresses its date as being the last day of the month from an including August 1998 to and including February 1999. As for those of January and February 1999, they are otherwise no different to the other six. They reveal that the applicant may have failed to recognise that when they issued she would have already rendered invoices for the total of the interest and fees under the loan.
At par 17 of his affidavit in the Federal Court the respondent gives his assessment of the interest calculations in the invoices as revealing an annual rate of interest of 10 per cent per annum. I understand that implicit in that assessment is the inference that the first named judgment debtor would have been receiving similar invoices and that the applicant's husband would at least have been allocated an equal share of that component of the cost of the loan. As to whether those inferences are supported, I note that each of the eight invoices bears an even number and it is conceivable that O'Rourke received corresponding odd numbered invoices. Such a prospect would resonate with the distinction that the applicant is able to draw at par 2 of her affidavit of 7 September 2004 between interest paid by O'Rourke and principal. Be that as it may, I suspect that there is little point engaging in the process of evaluating available inferences as it is patent that on any assessment the invoices do not reflect the judgment.
The respondent also annexes to his affidavit two pages each bearing the respondent's name and headed Cianiup Pty Ltd/Shirley Scanlan. Neither is dated. They each refer to the invoices tendered and express a sum consistent with the total of the eight invoices. One then expresses a component of what is expressed to be the total due and payable as:
"Interest from 1/3/99 to 28/2/02 at 8 per cent on $80,000 for three years $6,400".
The other expresses the same interest calculation but the result for the same period is three times the amount on the first, namely $19,200. On that page there is an additional component of the total for:
"Interest 1 March 2002 to 25 October 2002 8 per cent on $80,000 for nine months $4,800".
The total expressed in the first of those pages is consistent with the amount claimed in the letter of the applicant to the respondent of 15 February 2002. A hand-written marking of a date on the second together with the latest date expressed for the claim to interest would be consistent with it having been sent with the applicant's letter of 21 October 2002.
To this point I have canvassed the evidence of the applicant and the documents that she created. On 27 February 2006, when evaluating that material I was persuaded that in September 2004 the applicant had failed to properly disclose facts relevant to the question of whether leave ought to have been granted to enforce the judgment. The material upon which the applicant relies on this occasion is no different however the application having been served, the significant consideration that emerged after the order was made on 24 September 2004 has no impact.
Although I previously indicated that the applicant's letters of February and October 2002 are the only evidence of "repeated demands … for payment of the judgment debt", upon closer analysis their terms and the accompanying documents reveal claims made on a different basis. In my opinion all of the documents before me that were issued by the applicant reveal that the principal sum claimed was not the judgment sum but either the amount expressed in the deed of assignment or the amount borrowed by the applicant and the interest that she claimed was generated by the loan as too were the fees. It follows that until at least September 2004 the applicant had consistently failed to rely upon the judgment. Since that date, what appears to have been a period of delay of a year commencing in September 2004 is not explained. As to whether the applicant's evidence that she believed that the respondent remains impecunious still applies I can only record that she does not give any indication that she presently intends to enforce the judgment. Of course it is fair to say that she did not reveal any such commitment in 2004, to which I would suggest that the appropriate response may be that in light of what transpired subsequently it might expect that the applicant would make a commitment to utilising the benefit that she now seeks.
In his affidavit sworn on 5 December 2005 the respondent gives the following evidence.
"1. I refer to the Affidavit of Ms Shirley Lynette Scanlan sworn 2 (sic) September 2004 ….
2. I admit paragraph 1 of Ms Scanlan's affidavit.
3.I admit that paragraph 2 of Ms Scanlan's affidavit to the extent that it refers to me. I am not personally aware of whether or not Mr Barry O'Rourke (the first-named Judgment Debtor herein) was paying any interest towards the Judgment debt herein. Further, I say that I deny that Ms Scanlan is entitled to execute upon the Judgment debt herein, and accordingly I have refused to pay the Judgment debt and any interest claimed thereon by her.
4.I admit that the contents of paragraph 3 of Ms Scanlan's affidavit, but say that Ms Scanlan was entitled to claim a one-third proportionate liability from Mr O'Rourke in relation to the sum of $80,000 (paid by her in discharge of the judgment debt herein), against Mr O'Rourke's bankrupt estate.
5.I admit that Ms Scanlan has made demands for payment of the sum of $80,000 loaned by her to the three Judgment Debtors to enable them to discharge the Judgment debt herein, but do not admit that she has claimed payment of the Judgment debt itself on repeated occasions.
6.I admit the contents of paragraph 5 of Ms Scanlan's Affidavit, and say that her acts are inconsistent with the original agreement made in or about 27 July 1998 for the repayment to her of the sum of $80,000 (loaned in order to discharge the Judgment debt herein), and otherwise referred to in an Affidavit sworn by me on 1 December 2005 in support of Federal Court proceedings (commenced by me), to set aside Bankruptcy Notice 153 of 2005- issued by Ms Scanlan …."
On my reading of the applicant's evidence of 7 September 2004 to which he refers, there is no basis for him to contend for admissions that the applicant had advanced any loan to the judgment debtors or that the judgment debt had been discharged as he does at pars 5 and 6. Indeed his affidavit in the Federal Court proceedings reveals that:
"9. In order to prevent Cianiup Pty Ltd from continuing with its said bankruptcy proceedings, Mr Scanlan arranged for his wife to pay an amount acceptable to Cianiup's solicitors for the assignment of Cianiup Pty Ltd's debt to her. Accordingly, an agreement was executed on or about 27 July 1998, whereby Cianiup assigned the Debt to Ms Shirley Scanlan in exchange for payment of the sum of $80,000. … ."
In the same affidavit the respondent goes on to describe a conversation had at the time that he executed the deed of assignment of the judgment debt in the following context:
"8.On 30 June 1998, Cianiup Pty Ltd issued a Bankruptcy Notice against Mr O'Rourke, myself and Mr Lawrence Scanlan, for payment of the monies owed to it, as early noted.
9.In order to prevent Cianiup Pty Ltd from continuing with its said bankruptcy proceedings Mr Scanlan arranged for his wife to pay an amount acceptable to Cianiup solicitor's for the assignment of Cianiup Pty Ltd debt to her. Accordingly an agreement was executed on or about 27 July 1998, whereby Cianiup assigned the Debt to Ms Shirley Lynette Scanlan in exchange for payment of the sum of $80,000. … Neither myself, nor (I believe) Mr B O'Rourke were then able to pay the judgment debt or any part of it and accordingly I did not intend to oppose the bankruptcy proceedings.
10.On or about 27 July 1998, I received the document … which had been signed by Mr Scanlan and Mr Douglas (sic), but it had not been signed by me, although there was space for my signature. The document had a note attached to it, requesting me to call Mr Scanlan, and I did so. During the telephone conversation, Mr Scanlan requested that I urgently sign the document so that Cianiup's bankruptcy proceedings would not proceed against him. He said that he would arrange to get the monies with his wife and arrange for her to repay the debt on the basis that we (i.e. the three debtors) would each be liable to repay her one-third each of the amount she paid to discharge the debt to Cianiup.
11.We also discussed the terms upon which the proportionate amount was to be repaid by me. I asked him about this, because I did not have enough money to pay my share of the loan at that point in time. Mr Scanlan said words to me to the effect that, “when you can pay it, you’ve got to pay it”.
12.During that conversation, I accepted the terms offered, and accordingly, I signed the document. I then arranged for the fully executed document to be immediately couriered to Messrs Phillips Fox.
13No term as to any payment of interest for my one–third liability for the $80,000 payment by Ms Scanan to Cianiup Pty Ltd was discussed during that phone call with Mr Scanlan, nor at any later time.”

I infer that the signature that he intended to record at par 10 may have been that of the first named judgment debtor, Barry Daniel O'Rourke.
In his affidavit of 6 January 2006 the third named judgment debtor; Lawrence John Scanlan gives the following evidence of that conversation:
"16. I do not remember the telephone conversation referred to in paragraph 10 of that affidavit and deny it occurred. By the time Shirley signed the Deed, the terms on which she was to take assignment had already been agreed between Douglas, O'Rourke and me. I would never have suggested to Shirley she enter the Deed before Douglas and O'Rourke had agreed to the proposal for repayment of the Loan."
That agreement is expressed in the same affidavit in the context provided by par 10 (which I have already quoted) whereby the applicant told her husband that she would take out a loan and purchase the judgment. Scanlan's evidence of that agreement is as follows:
"11. I then discussed the matter with Douglas and O'Rourke and said words to the following effect to them:
(a)we (Douglas, O'Rourke and I) were jointly and severally liable under the Judgment;
(b)Shirley would take out a loan to purchase the Judgment from the (sic) Cianiup;
(c)we would repay the costs involved in obtaining of the Loan;
(d) we would repay the Loan within six months;
(e) we would pay the interest on the loan.
12.I asked both Douglas and O'Rourke whether they agreed to the terms. They each told me that they did."
In effect, Scanlan portrays an arrangement which would buy for each of the judgment debtors six months relief at a commercial rate.
In his affidavit of 16 January 2006 the respondent addresses that evidence. It is my assessment that the respondent would concede sub-par 11(a) but would contest the balance. He states that until the conversation he canvassed at par 10 in his Federal Court affidavit, he was not aware of the proposal that the judgment creditor would be paid.
In his Federal Court affidavit he deposes:
"18. Even in Ms Scanlan's own correspondence (at paragraph 3 on page one of her letter dated 15 February 2002), she refers to the debt being split “three ways”. This accords with my recollection as to the arrangement made for repayment of my part of the $80,000 sum used to repay the Cianiup debt. It was made clear to me by Mr Scanlan during our earlier–noted telephone conversation that he was arranging the payment of the monies, and that he was speaking for his wife in relation to the arrangements being made. I had no reason to doubt that he was authorised to act for his wife, the Respondent herein in concluding that agreement."
The respondent produces the affidavit of O'Rourke of 1 December 2005 filed in the Federal Court proceedings. Having been shown the evidence of the respondent sworn in the same proceedings he refers to par 9 and recalls having discussions with the Scanlans shortly prior to the execution of the assignment. He deposes as follows:
"5.Before the date on which I signed the above-mentioned agreement dated 27 July 1998, Mr Scanlan and I had a conversation at the King Street offices in relation to the bankruptcy proceedings that had been issued by Cianiup Pty Ltd against the three of us. I had said to Mr Scanlan previously that I was unable to pay any part of Cianiup's Judgment debt, then owed. Mr Scanlan said to me words to the effect that his wife would 'put up the money' to repay the Judgment debt, as the three debtors (i.e. including Mr Scanlan) would agree to repay her 'equally' for the loan. I agreed to this offer, and I recall confirming this arrangement as being acceptable, during a conversation with Ms Scanlan at the King Street offices on or about that date. I do not recall having any discussion in relation to the payment of interest on the loan with either Mr or Mrs Scanlan, whether on that date or at any later date.
6.To the best of my recollection, I also had a discussion with Mr Douglas shortly prior to my execution of the abovementioned agreement dated 27 July 1998, where he confirmed that he had accepted the same terms, i.e. that the three of us would each pay equally (i.e. one –third each) to repay the loan monies from Ms Scanlan, that was to be used in discharge the (sic) judgment Debt referred to earlier."
O'Rourke's evidence is consistent with the respondent's proposition that it was agreed that each of the judgment debtors would be liable to the applicant for one-third of the judgment debt.
Other than to the limited extent to which the applicant confirms her husband's evidence she gives no evidence in response to the balance of his evidence or that of either of the other judgment debtors. Recognition of that level of engagement is consistent with a conclusion open on the whole of the evidence and that is that she played no significant role in the arrangements whereby she took the benefit of the assignment. I conclude that in his dealings with the other judgment debtors her husband represented her interests.
The issue to be determined under the application is not whether either the applicant's husband's actions or her inaction may have compromised the enforceability of the judgment against the respondent but rather the broader question of whether in light of the evidence presented in the application it is appropriate to provide for its enforcement. To put that issue into perspective it may be useful to consider the case made by the applicant against her husband. Although he did not oppose the application there was no evidence put by the applicant that would suggest that there would be any utility that would derive from an order made in her favour. There is a prospect that if an order was made that she would enforce it against him. Indeed the terms of the application would say something for that prospect. However it is no more than an application and for it to succeed the applicant is required to do more than demonstrate that the court has the jurisdiction to act as she proposes.
I do not have the benefit of a clear case on behalf of the applicant in response to the issues raised by the respondent and have not had the opportunity to reflect upon the results of cross examination of witnesses. That said, I have to make some assessment of the evidence in order to consider whether it is appropriate to make an order in the terms of s 13 (2).
At par 11(a) Scanlan refers to liability under the judgment being joint and several but is silent as to whether that would be the case for the balance of the obligations expressed at the same point in his affidavit. All of the invoices of the applicant and her letter of February 2002 would suggest that each of them would be liable for part only of those obligations.
At pars 5 and 6 of his affidavit Scanlan gives evidence of meetings had by the judgment debtors with representatives of Cianiup Pty Ltd. He proposed on one such occasion to pay one third of the debt if Cianiup would release him from the judgment. That offer was rejected because there would be no guarantee that Cianiup Pty Ltd would be able to recover the balance. That reasoning is rendered into the context of this application by par 9 where he deposes:
"I did not suggest that (the applicant) lend Douglas or O'Rourke any money to pay the Judgment because I knew neither of them had the money at that time to repay such a loan."
It is difficult to ignore the fact that prior to the assignment the respondent and O'Rourke were comfortable with the prospect that the judgment would not be satisfied and also that Scanlan had realised that of the three of them only he had the capacity to avoid bankruptcy.
In my opinion it is irresistible that Scanlan's focus would have been upon his own interests, particularly the prospect of recovery of a contribution from the others. The introduction of his wife's particular interest would only reinforce his own. Be that as it may, by his offer to Cianiup he had recognised the equitable solution and there is no reason to consider that it would not have been recognised by the others, at least at the point where for each of them it became apparent that their impending bankruptcy would be put to one side. The respondent and O'Rourke may have also reflected upon the fact that Scanlan would be elevated to a relatively superior position that had the capacity for later enhancement to their detriment. Ultimately they were businessmen and would have recognised the benefit in at least limiting their exposure. In response to the prospect of relief from imminent bankruptcy and a period of relief from demand for payment each of the other judgment debtors may have had little more to give than $500.00 and the commitment sought by Scanlan to future payment. I am satisfied that the commitment made by each of them was to the same extent as that which Scanlan had put to Cianiup.
I can not discount the prospect that an agreement to that effect was reached with each of them. In making that statement I recognise that the respondent and O'Rourke give evidence that conveys that they separately agreed with Scanlan that they would each only be liable for one-third of the judgment debt. In my opinion it is significant that when confronted by the respondent's evidence Scanlan does not actually engage with the terms of the agreement that the respondent proposes, he simply refers to the conversation. Further, that at that critical point he complicates his evidence by first deposing that he does not remember the conversation and then immediately denies that it occurred. He has nothing to say in relation to O'Rourke's evidence.
Otherwise in the context that I have described and upon which I am satisfied that only Scanlan had the capacity to avoid bankruptcy and that he appreciated that fact, that at least in the short term the prospect of payment of any significant amount by at least the respondent would be unlikely. That conclusion is difficult to reconcile with par 11(d) of Scanlan's evidence.
In the context of the action from which it emerges the significance of a judgment is that it establishes the result in the litigation between the parties. It represents the combined efforts and the cost expended by the parties, the court and the community and is valued accordingly. Those considerations may suggest that the court would have an interest in facilitating a process whereby its value as a determination or at least its utility was not diminished. I would suggest that the more appropriate view is that the court has no particular interest in a judgment beyond the matters upon which it pronounces and that it is otherwise for the parties to make of it what they will. The effect of s 13 of the Civil Judgments Enforcement Act 2004 is to recognise that over time the value of a judgment may diminish to the extent that it may be considered to be no more than a valuable instrument with the prospect that upon the failure of an application such as that before me it would be rendered ineffective. By s 12 the Parliament has determined that after 12 years it would be ineffective. In this case the applicant was not a party to the litigation but volunteered to place herself in the position of the judgment creditor. In her limited dealings with the respondent to date she has chosen not to rely upon the judgment. It seems to me that the only significance of the judgment has been that in relatively recent times it has had some appeal as a convenient means of recourse to the respondent, or perhaps the most convenient recourse. I would speculate that when the applicant sought advice prior to the application filed in 2004 that it may have been the solicitor that suggested that the most efficient course to take was to seek to rely upon the judgment. That would at least account for the manner in which the evidence in the applications has emerged.
I am satisfied that on the evidence the applicant's primary motivation in taking the assignment was other than its commercial value but rather to alleviate her husband's difficulties. I am also satisfied that little significance was given by the parties to the prospect that the debt would be paid at any particular time. It is not surprising that after the effluxion of eight years the judgment debtors may not be in a position to do more than provide the relevant evidence in general terms. Be that as it may, the onus is on the applicant and the evidence upon which she relies is not sufficient for me to be satisfied that it conveys what actually transpired but rather the result sought in the application.
At some point in evaluating the case before me it is appropriate to move beyond consideration being given to restoring the applicant's entitlement under the judgment to reflecting upon the significance of the issues raised by the respondent and how they ought to be determined. At the very least they have no resonance with the issues canvassed in the litigation that gave rise to the judgment. In the course of submissions the applicant proposed that features of the respondent's case such as its improbability and that relationship proposed by him would not be enforceable ought to tell against him. The fact that want of consideration was portrayed as a difficulty for the respondent is of no particular significance. It is my understanding of the respondent’s position that he was responding to the application, not seeking to establish a case.
Turning to s 13 (2), it sets out what amount to two prospective results. Whilst I am satisfied that the applicant is the assignee of the judgment debt, in the context of this application I am satisfied that that finding would not justify a grant of leave. As to whether I should constitute a case for determination as proposed at par (b) that is not my inclination however it is appropriate to allow for the parties to make submissions as to how the case might be constituted and where the onus would lie prior to finally deciding one way or another. It might be useful for the parties if I was to indicate that it is my opinion that at least a third result opened for consideration by the court would be to dismiss the application.