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…

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.

Continue reading Cianiup Pty Ltd v O'Rourke

Details

AGLC: Cianiup Pty Ltd v O'Rourke [2006] WADC 122
Case: [2006] WADC 122
Decision Date: 16 AUGUST 2006

CaseChat Overview and Summary

In Cianiup Pty Ltd v O'Rourke, the applicant, Cianiup Pty Ltd, sought leave to execute a judgment debt against the respondent, Mr O'Rourke, under the Rules of the Supreme Court of Western Australia. The dispute centred on the enforcement of a judgment debt awarded to Cianiup Pty Ltd against Mr O'Rourke. The matter was heard in the Supreme Court of Western Australia, where the court had to determine whether Cianiup Pty Ltd was entitled to leave to execute the judgment debt, despite evidence of an alternative remedy available to the applicant.

The primary legal issues were whether the applicant had demonstrated a bona fide intention to execute the judgment and whether the applicant had any alternative remedies available that might affect their right to execute the judgment. The court had to consider the relevant rules governing the enforcement of judgments and whether the applicant had complied with those rules. Additionally, the court had to assess the impact of the availability of an alternative remedy on the applicant's right to execute the judgment.

The court ruled that Cianiup Pty Ltd had not demonstrated a bona fide intention to execute the judgment debt, as there was evidence of an alternative remedy available to the applicant. The court found that the applicant had not acted with the requisite urgency and diligence to enforce the judgment, which was necessary to establish a bona fide intention. Furthermore, the availability of an alternative remedy meant that the applicant could not proceed with the execution of the judgment without first considering the other remedy. Consequently, the court denied the application for leave to execute the judgment.

The Supreme Court of Western Australia ordered that the application for leave to execute the judgment debt be dismissed. The court also noted that the applicant should first consider the alternative remedy before pursuing any further action to enforce the judgment. This decision underscored the importance of demonstrating a bona fide intention to execute a judgment and the need to consider any alternative remedies that may be available.

Orders