Citigroup Pty Ltd v Jackman
[2018] VSC 545
•21 September 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
ENFORCEMENT LIST
S CI 2017 04857
| CITIGROUP PTY LTD (ABN 88 004 325 080) | Plaintiff |
| v | |
| ALEXANDER R JACKMAN | Defendant |
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JUDICIAL REGISTRAR: | Matthews JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 July 2018 |
DATE OF RULING: | 21 September 2018 |
CASE MAY BE CITED AS: | Citigroup Pty Ltd v Jackman |
MEDIUM NEUTRAL CITATION: | [2018] VSC 545 |
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PRACTICE AND PROCEDURE – Warrants of execution – Where more than six years had elapsed since judgment had been obtained – Where change had taken place, by assignment, in the identity of the person entitled to execution under the judgment – Equitable assignment sufficient – Evidence regarding reasons for delay satisfactory – Discretion exercised to grant leave – Supreme Court (General Civil Procedure) Rules 2015, r 68.02 – Commonwealth Bank of Australia v Saggese [2018] VSC 40 – Dennehy v Reasonable Endeavours Pty Ltd [2001] VSC 447 – Dennehy v Reasonable Endeavours Pty Ltd [2003] FCAFC 158.
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APPEARANCES: | Counsel | Solicitors |
| For Credit Corp Services Pty Limited | Ms B Slocum | Gadens Lawyers |
| For the Defendant | Mr V Ryan, Solicitor | Ryan Solicitors |
JUDICIAL REGISTRAR:
Introduction
By summons filed 29 May 2018 (‘Application’), Credit Corp Services Pty Limited (ACN 082 928 872) (‘Credit Corp’), as assignee of a debt from the plaintiff, Citigroup Pty Ltd (‘Citigroup’), applies for leave pursuant to rule 68.02(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) to issue a warrant to enforce a judgment of the Local Court of New South Wales at Sydney given in favour of Citigroup on 18 February 2008 against the defendant, Alexander R Jackman (‘Jackman’).
The judgment in the Local Court of New South Wales at Sydney entered on 18 February 2008 was for the sum of $51,167.23 (‘Judgment’). On 28 February 2017, Citigroup registered the Judgment with the Magistrates’ Court of Victoria at Melbourne. On 27 October 2017, the Magistrates’ Court issued a certificate for the Supreme Court pursuant to s 112 of the Magistrates’ Court Act 1989 (Vic) (‘Certificate’), which was registered in this Court pursuant to that section on 29 November 2017.
In support of the Application, Credit Corp relies on the following affidavits of:
(a) Rebecca Lauren Di Rago affirmed 28 May 2018 (‘Di Rago Affidavit’);
(b) Stephanie Louse Rawlinson affirmed 24 July 2018 (‘Rawlinson Affidavit’);
(c) Chris Hutchinson sworn 21 May 2018 (‘Hutchinson Affidavit’);
(d) Christine Ledgard affirmed 23 May 2018 (‘Ledgard Affidavit’);
(e) Anna Barlow affirmed 23 May 2018 (‘Barlow Affidavit’);
(f) Joshua Fahey affirmed 23 May 2018 (‘Fahey Affidavit’); and
(g) Mark Paraiso affirmed 23 May 2018 (‘Paraiso Affidavit’).
Ms Di Rago and Ms Rawlinson are solicitors employed by Gadens, solicitors for Credit Corp. The deponents of the other affidavits listed above are all employees of Credit Corp who have had dealings in respect of Jackman and the Judgment.
In opposition to the Application, Jackman relies on the following affidavits of:
(a) Jackman, affirmed 25 July 2018 (‘Jackman Affidavit’); and
(b) Vincent Ryan, solicitor for Jackman, sworn 25 July 2018.
Counsel for Credit Corp also provided a written submission in support of the Application.
For the reasons which follow, I will grant the Application for leave to issue a warrant to enforce the Judgment.
Applicable law
The applicable law in respect of warrants of execution was comprehensively summarised in a recent judgment by Derham AsJ in Commonwealth Bank of Australia v Saggese.[1] I adopt that summary. Below, I have set out only those aspects of the applicable law which were in contention in the Application in this case.
[1][2018] VSC 40, [14]–[34] (‘Saggese’).
Order 68 of the Rules deals with warrants of execution. Rule 68.02 of the Rules provides:
(1)Notwithstanding Order 66, a warrant of execution to enforce a judgment shall not be issued without the leave of the Court in the following cases—
(a)where six years have elapsed since the judgment took effect;
(b)where any change has taken place, whether by assignment or death or otherwise, in the identity of the persons entitled or liable to execution under the judgment;
(c)where the judgment is against the assets of a deceased person coming to the hands of the deceased's executor or administrator after the date of the judgment, and it is sought to issue execution against assets of that description;
(d)where under the judgment a person is entitled to enforce it subject to the fulfilment of a condition;
(e)where the warrant is against property in the hands of a receiver appointed by the Court or of a sequestrator;
(f)where the judgment is for a sum in a currency not Australian dollars.
(2)Paragraph (1) does not affect any provision of or under any Act requiring the leave of the Court before a judgment may be enforced.
(3)An application for leave under paragraph (1) may be made without notice to any person, unless the Court otherwise orders.
(4)The application shall be supported by evidence on affidavit showing-
(a)where the judgment is for the payment of money, the amount, including any interest, due on the date of the application;
(b)where paragraph (1)(a) applies, the reasons for the delay;
(c)where paragraph (1)(b) applies, the change which has taken place;
(d)where paragraph (1)(b), (1)(c) or (1)(d) applies, that a demand to satisfy the judgment has been made on the person liable to satisfy it and that the person liable has not satisfied it;
(e)that the applicant is entitled to proceed to execution on the judgment; and
(f)that the person against whom execution is sought is liable to execution on the judgment.
In Dennehy v Reasonable Endeavours Pty Ltd,[2] Pagone J explained the purpose of the requirement to provide reasons for the delay in enforcing judgment:
The purpose of the requirement is to put the Court in the position of being able to assess whether it should grant the leave being sought. Delay due to abandonment of rights or indifference to them would tend against the grant of leave. The purpose of the requirement is not simply for a tardy judgment creditor to be embarrassed by a statement of the delay. A mere statement of inactivity might amount to a statement of delay, and on one view of the word "reasons" such a statement might even be said to show the reasons for the delay. The plaintiff seeking leave needs to show reasons for the delay which, as the Rule states, supports the application.
[2][2001] VSC 447, [11] (‘Dennehy’).
In relation to a change by assignment in the identity of the persons entitled to execution under the Judgment, Derham AsJ noted in Saggese that the evidence on affidavit required by rr 68.02(4)(c) and (d) is ‘evidence of a valid and enforceable assignment and that a demand to satisfy the judgment has been made on the person liable to satisfy it and that the person liable has not satisfied it’.[3]
[3][2018] VSC 40, [20].
His Honour went on to consider the distinction between a valid legal assignment and a valid equitable assignment (the relevant distinction being one of the provision of notice of the assignment to the debtor). In summary, both in equity and law a judgment may be the subject of an assignment, and the terms of r 68.02 do not require an assignment to be a legal assignment. His Honour concluded that it was ‘sufficient if the assignment is equitable’. He also stated that ‘the rule is not concerned with whether the assignment is legal or equitable. What is required is that a demand to satisfy the judgment has been made on the defendant and he has not satisfied it.’[4]
[4][2018] VSC 40, [20]-[28], [70].
As set out above, r 68.02(4) of the Rules requires that an application for leave be supported by evidence on affidavit showing a number of matters. In this case, Credit Corp needs to show:
(a) the amount due, including interest, on the date of the Application (r 68.02(4)(a));
(b) because six years have elapsed (in this case, ten years) since the Judgment took effect, the reasons for the delay (r 68.02(4)(b));
(c) because a change has taken place, by assignment, in the identity of the person entitled to execution under the Judgment:
(i) the change which has taken place (r 68.02(4)(c)); and
(ii) that a demand to satisfy the Judgment has been made on the person liable to satisfy it and that the person liable has not satisfied it (r 68.02(4)(d));
(d) that it is entitled to proceed to execution on the Judgment (r 68.02(4)(e)); and
(e) that the defendant is liable to execution on the Judgment (r 68.02(4)(f)).
Consideration
It is convenient to briefly explain Credit Corp’s evidence in support of the Application. The Di Rago Affidavit summarises the key aspects and the procedural steps, including the obtaining of the Judgment, registering it in the Magistrates Court and then obtaining the Certificate, calculation of interest, the assignment and the attempts made to procure payment. Ms Di Rago then exhibits the affidavits of the Credit Corp employees (being Mr Hutchinson, Ms Ledgard, Ms Barlow, Mr Fahey and Mr Paraiso).[5]
[5]Exhibit RLD-1 is a paginated bundle containing the Hutchinson Affidavit (pages 3-117 of the bundle), the Ledgard Affidavit (pages 118-159 of the bundle), the Barlow Affidavit (pages 160-166 of the bundle), the Fahey Affidavit (pages 167-174 of the bundle) and the Paraiso Affidavit (pages 175-193 of the bundle).
Mr Hutchinson is the Legal Operations Manager employed by Credit Corp and has supervised the account and case managers who have monitored the file in the course of their employment with Credit Corp. From his own knowledge and by access to the account summary notes maintained by Credit Corp as well as other records of Credit Corp, Mr Hutchinson deposes to the steps taken by Credit Corp employees in relation to the file. In particular, he deposes to those steps taken by persons who are no longer employees of Credit Corp but who recorded matters in the account summary notes. He exhibits a copy of the account summary notes and the correspondence sent by Credit Corp to Jackman. Ms Ledgard and Mr Fahey are Account Managers employed by Credit Corp and they depose to the actions they each took in relation to the file. They exhibit copies of the account summary notes recorded by them in respect of those actions. Ms Barlow is also an Account Manager employed by Credit Corp and she deposes to actions she took regarding the Judgment, exhibiting a copy of the account summary notes recorded by her and correspondence sent by her to Jackman. Mark Paraiso is a Case Manager employed by Credit Corp and he deposes to actions he took regarding the Judgment, exhibiting a copy of the account summary notes recorded by him and correspondence he sent to Jackman.
Through the combination of those affidavits, the Court has been given detailed information as to the steps taken by Credit Corp regarding the Judgment.
At the hearing, Jackman’s solicitor stated that Jackman’s opposition to the Application revolved around delay, and that he made no comments in relation to the other matters which Credit Corp was required to establish. Nonetheless, as the Court is being asked to exercise its discretion to grant leave to issue a warrant, I still have to be satisfied as to all elements required by r 68.02(4). I will address each of these, however it is convenient to do so in a different order to that set out above.
The amount due, including interest, on the date of the Application
The amount due under the Judgment
The Judgment is for the amount of $51,167.73 and the evidence (which was not challenged) establishes that it remains owing. Ms Di Rago deposes that she does not have instructions from Credit Corp as to amounts received by Citigroup (if any) between the date of obtaining the Judgment and the date of the assignment of the Judgment to Credit Corp. She then deposes that since the date of the assignment, she is instructed that Credit Corp has not received any payments towards the Judgment.[6] Mr Hutchinson deposes that to his knowledge, no payments have been made to satisfy the Judgment.[7]
[6]Di Rago Affidavit, [5], [11]–[12].
[7]Hutchinson Affidavit, [11].
Calculation of interest
Ms Di Rago deposes that in addition to the Judgment amount of $51,167.73, interest in the amount of $18,997.94 has accrued from the date of assignment (being 11 October 2013) to 28 May 2018.[8] She says that this was calculated using the ‘NetLaw Debt Collection Interest Rate Calculator’ pursuant to s 108 of the Service of Execution and Process Act 1992 (Cth) (‘SEPA’), s 101 of the Civil Procedure Act 2005 (NSW) and r 36.7 of the Uniform Civil Procedure Rules 2005 (NSW).
[8]Di Rago Affidavit, [5]–[6], [10].
In respect of a judgment which has been registered by a court in a state other than the place of rendition, s 108 of SEPA relevantly provides that interest on the amount of that judgment:
(a)is payable at the same rate or rates and in respect of the same period or periods as would be applicable in the court of rendition; and
(b)is recoverable to the extent that the judgment creditor satisfies the court in which proceedings by way of enforcement of the judgment are taken as to the amount of the interest.
Section 101 of the Civil Procedure Act 2005 (NSW) relevantly provides:
101 Interest after judgment
(1)Unless the court orders otherwise, interest is payable on so much of the amount of a judgment (exclusive of any order for costs) as is from time to time unpaid.
(2)Interest under subsection (1) is to be calculated, at the prescribed rate or at such other rate as the court may order, as from:
(a) the date on which the judgment takes effect, or
(b) such later date as the court may order.
…
(5)Interest on an amount payable under an order for the payment of costs is to be calculated, at the prescribed rate or at any other rate that the court orders, as from the date the order was made or any other date that the court orders.
…
(7)In this section, a reference to the prescribed rate of interest is a reference to the rate of interest prescribed by the uniform rules for the purposes of this section.
Rule 36.7 of the Uniform Civil Procedure Rules 2005 (NSW) relevantly provides:
(1)The prescribed rate at which interest is payable under section 101 of the Civil Procedure Act 2005 is:
(a)in respect of the period from 1 January to 30 June in any year—the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before that period commenced, and
(b)in respect of the period from 1 July to 31 December in any year—the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before that period commenced.
I am satisfied that the interest has been calculated in accordance with the laws in the place of rendition, and as to the rate of interest. Therefore, s 108 of SEPA has been satisfied.
Credit Corp did not explain why it sought interest only from the date of assignment, and not from the date the Judgment was obtained. Given that no evidence was adduced as to steps taken by Citigroup in respect of the Judgment prior to its assignment, subject to consideration of the issue identified in paragraphs 25 to 27 below, I consider this to be an appropriate course. Jackman did not object to the amount of interest: when I asked his solicitor if he had any submissions regarding interest and whether recovery of interest on the Judgment for a period in excess of 6 years was prohibited, he said that he had nothing to add on that issue. Jackman’s solicitor did refer to the accrual of interest in the context of delay, as I will explain later in these reasons, but there was no submission that interest should not be able to be recovered for the period sought or that it had not been calculated correctly.
Entitlement to interest
In Saggese, Derham AsJ made some comments regarding the recovery of interest beyond 6 years, due to the operation of s 5(7) of the Limitations of Actions Act 1958 (Vic) (‘LAA’). That section provides:
Save as otherwise expressly provided an action shall not be brought to recover any arrears of interest in respect of any sum of money whether payable in respect of a specialty, judgment, legacy, mortgage or otherwise, or any damages in respect of such arrears, after the expiration of six years after they became due.
Noting that ‘action’ is defined in s 3 of the LAA to include any proceeding in a Court of law, Derham AsJ stated the following:[9]
98.The application for leave under r 68.02 of the Rules is a proceeding in a Court of law. But it is not, in terms, a proceeding for the recovery of ‘any arrears of interest in respect of any sum of money … payable in respect of a … judgment’. It is, however, a proceeding to issue execution which will enable the recovery of such interest. The present application may not be within the text of the limitation provision, but it does appear to be within the purpose or intent of the provision. There appears no reason why this provision should not apply to limit the recovery of interest pursuant to execution.
99.The question of the application of the LAA was not, however, argued before me and having regard to my finding that leave should not be granted to Credit Corp, I will take the matter no further.
[9]Saggese [2018] VSC 40, [98]–[99].
His Honour was raising the question as to whether the 6 year limitation period meant that enforcement action could not be taken to recover interest on a judgment beyond 6 years. As is made clear in paragraph 99 of Saggese, his Honour did not decide the question and his comments in this respect were obiter.
In relation to this issue, Counsel for Credit Corp referred to a decision of the Full Court of the Federal Court in Dennehy v Reasonable Endeavours Pty Ltd.[10] In that case, Finkelstein J (Madgwick J and Dowsett J agreeing) traced the history of ss 5(4) and(7) of the LAA (and their predecessor provisions), the equivalent provisions in New South Wales and in England. They concluded that ss 5(4) and (7) of the LAA only affect new actions upon a judgment and do not deal with steps taken in the enforcement of a judgment, with the only ‘limitation’ on enforcement of a judgment obtained in the Supreme Court of Victoria being that contained in the Court’s rules.[11] By the reasoning set out by Finkelstein J, the same conclusion applies to the equivalent provisions of the Limitations Act 1969 (NSW).[12]
[10][2003] FCAFC 158. This is a different case to that referred to earlier in these reasons. Further, it does not appear to have been raised with Derham AsJ in Saggese.
[11][2003] FCAFC 158, [18]–[19].
[12]In Dennehy v Reasonable Endeavours Pty Ltd [2003] FCAFC 158 at [17], Finkelstein J cites passages from the report of the New South Wales Law Reform Commission which led to the passing of the Limitations Act 1969 (NSW), which clearly differentiate between actions on a judgment and processes of execution of a judgment.
Accordingly, I am satisfied that Credit Corp is entitled to recover interest on the Judgment, calculated as set out above.
The assignment of the Judgment and a demand made of Jackman to satisfy it
Assignment of the Judgment from Citigroup to Credit Corp
Ms Di Rago and Mr Hutchinson both depose that Citigroup assigned all of its legal and beneficial rights, title and interest in the Judgment to Credit Corp on 11 October 2013.[13]
[13]Di Rago Affidavit, [6]; Hutchinson Affidavit, [6].
Ms Rawlinson provides further information and documentation regarding the assignment of the Judgment. In summary, the Rawlinson Affidavit establishes that:
(a) the assignment was effected pursuant to a debt sale deed between Citigroup and Credit Corp executed 30 September 2013 (‘Deed’);[14]
(b) the Deed provided that upon payment of the required sum, Citigroup assigns all legal and beneficial rights, title and interest in and to the ‘Receivables’ to Credit Corp. Receivables are defined in the Deed as all Citigroup’s legal and beneficial rights, title and interest to any money owing to Citigroup under the Contracts (those being defined as contracts for personal charge cards, credit cards, or unsecured loans under which the debtor is indebted to Citigroup as at 26 September 2013);[15] and
(c) the Deed contained schedules which listed the details of the Receivables assigned to Credit Corp. Exhibited to the Rawlinson Affidavit is a redacted copy of the schedule which reveals that the debt the subject of the Judgment was included in the Receivables assigned to Credit Corp.[16]
[14]Rawlinson Affidavit, [6]; Exhibit SLR-1 thereto.
[15]Rawlinson Affidavit, [7]-[8]; Exhibit SLR-1 thereto.
[16]Rawlinson Affidavit, [9]-[10]; Exhibit SLR-2 thereto.
The discrepancy as to the date of assignment between the Di Rago and Hutchinson Affidavits on the one hand, and the Rawlinson Affidavit on the other hand, with the former referring to it as 11 October 2013 and the latter as 26 September 2013[17] was not explained. However, I do not consider that anything turns on it.
[17]The Deed defines ‘Assignment Date’ as 26 September 2013.
I am satisfied that Credit Corp has established that it is the assignee of the Judgment from Citigroup.
Notice to Jackman of the assignment
Mr Hutchinson exhibits a copy of a notice of assignment dated 21 October 2013 (‘Notice’) sent by Credit Corp to Jackman’s then last known address in Commercial Road, Prahran (‘Commercial Road Address’).[18] There is no direct evidence of service of the notice of assignment, in that none of the Credit Corp employees who have provided affidavits provide evidence of it other than by referring to the notice of assignment.
[18]Hutchinson Affidavit, [6]; Exhibit CH-1 thereto.
In relation to the Notice, Jackman says that ‘I do not believe that I have ever seen that document before and note that I was not living at [the Commercial Road Address] in October 2013.’[19] Jackman states that in 2008 he was living at the Commercial Road Address, that in August 2009 he moved to a flat in Toorak Road, South Yarra and that in about August 2010 he moved to Tivoli Place, South Yarra (‘Tivoli Place Address’). He also says that he left that address in around July 2017 and now lives in Bridge Road, Richmond.[20] Credit Corp’s evidence discloses that it did not learn of the Tivoli Place Address until around 18 November 2013.[21]
[19]Jackman Affidavit, [6].
[20]Jackman Affidavit, [2].
[21]Ledgard Affidavit, [8(b)]; Exhibit CL-1.
As noted above, there is no direct evidence of the Notice having been sent. While Jackman does not deny receiving it, he does say that he doesn’t believe he had seen it before and his evidence about his address at the relevant time clearly demonstrates that he was not at the address to which it was sent. However, subsequent correspondence sent to Jackman, at addresses he either gave to Credit Corp or to his business address in St Kilda Road Melbourne (‘Work Address’), referred to the assignment.[22] Jackman does not refer to these letters in his affidavit.
[22]Letter dated 26 February 2014 (Hutchinson Affidavit, [9(b)], Exhibit CH-4; Barlow [6(b)], Exhibit AB-1); letter dated 30 January 2015 (Hutchinson Affidavit, [8(r)], Exhibit CH-4). Below, I deal with Jackman’s knowledge of documents sent to the Work Address. It is sufficient here to note that I am satisfied that documents sent to the Work Address came to his attention.
While written notice of the assignment is required for it to be a legal assignment, if that notice was not given then it is an equitable assignment. As set out in paragraph 12 above, that is sufficient for the purposes of enforcing the Judgment. Accordingly, it is not necessary for me to make a finding as to whether the Notice was received by Jackman, although the evidence suggests that via the subsequent correspondence referred to above, he did receive notice of the assignment.
Demands made of Jackman to satisfy the Judgment
The evidence establishes that numerous written demands were made of Jackman to satisfy the Judgment. Disregarding the Notice and letters dated 11 December 2013 and 15 January 2014, as these were all sent to the Commercial Road Address, the Hutchinson Affidavit establishes that between 26 February 2014 and 2 August 2016, six letters were sent to Jackman at addresses advised by him to Credit Corp or his Work Address which demanded payment of the amount outstanding under the Judgment.[23] In addition, Mr Paraiso sent a letter dated 24 April 2017 to Jackman at the Tivoli Place Address which demanded payment.[24]
[23]Hutchinson Affidavit, [9(c)-(h)], Exhibit CH-4; See also Barlow Affidavit, [6(b)], Exhibit AB-1.
[24]Paraiso Affidavit, [8(g)], Exhibit MP-1.
I am satisfied that demands have been made of Jackman to satisfy the Judgment.
The reasons for the delay
Credit Corp’s evidence
There was no evidence adduced as to what steps, if any, Citigroup took to enforce the Judgment prior to it being assigned to Credit Corp. I note that the initial six year period had not expired as at the time of the assignment.
Credit Corp’s affidavits give evidence of the many attempts it made to contact Jackman by phone, email and written correspondence. By way of example:
(a) on 8 November 2013, Ms Ledgard made a telephone call to Jackman and spoke to someone who would not confirm their identity;[25]
[25]Ledgard Affidavit, [8(a)].
(b) between 18 November 2013 and 23 January 2014, Ms Ledgard made various searches to obtain contact details for Jackman and attempted contact with him via telephone numbers obtained from those searches, without success. She also identified the Tivoli Place Address as a possible address, and that Jackman was a director of a company called Solution Search Pty Ltd (‘Solution Search’), but was not able to make contact, including through calls to possible neighbours;[26]
[26]Ledgard Affidavit, [8(b)].
(c) Ms Barlow says she spoke to Jackman by telephone on 29 January 2014 who would not confirm his contact details and advised any correspondence could be sent to him at PO Box 9349, South Yarra, Vic 3141 (‘PO Box Address’);[27]
[27]Barlow Affidavit, [6(a)].
(d) the following day, Ms Barlow sent a letter to Jackman at the PO Box Address which referred to the assignment and demanded payment of the Judgment;[28]
[28]Barlow Affidavit, [6(b)].
(e) Mr Hutchinson says that on 7 April 2014, Credit Corp’s searches revealed that Jackman was the ‘Principal’ of Solution Search and obtained an address for that company, which is the Work Address referred to above;[29]
[29]Hutchinson Affidavit, [8(b)].
(f) between 27 June 2014 and 2 July 2014, Mr Fahey made phone calls to Jackman’s confirmed mobile telephone number but was unable to make contact with him. He says that he also sent a text message to that mobile number requesting contact;[30]
[30]Fahey Affidavit, [6(a)].
(g) between 24 October 2014 and 16 December 2014, Credit Corp made regular attempts to contact Jackman by telephone and email to resolve the matter privately, which Mr Hutchinson says were met with avoidance or no contact by Jackman;[31]
[31]Hutchinson Affidavit, [8(q)].
(h) Mr Paraiso sent a letter regarding enforcement of the Judgment to Jackman at the Tivoli Place Address on 2 August 2016;[32]
[32]Paraiso Affidavit, [6(c)]; Exhibit MP-1.
(i) between 14 March 2017 and 24 April 2017, Mr Paraiso made phone calls and conducted database searches in an attempt to contact Jackman to discuss commercial resolution, but was unsuccessful;[33]
[33]Paraiso Affidavit, [6(d)].
(j) on 24 April 2017, Mr Paraiso sent a further letter to Jackman and telephoned him on his mobile number, but the call was terminated when Mr Paraiso said he was from Credit Corp;[34] and
[34]Paraiso Affidavit, [6(f)].
(k) in addition to the above, letters were sent to Jackman on the following dates:[35]
[35]I have not included letters sent to the Commercial Road Address, due to Jackman having left that address in August 2009.
(iii) 26 February 2014, by post to the PO Box Address;[36]
[36]Hutchinson Affidavit, [9(c)]; Exhibit CH-4.
(iv)12 September 2014, by email to Jackman’s email address at Solution Search;[37]
[37]Hutchison Affidavit, [8(l)]; Exhibit CH-4.
(v) 14 October 2014, by post to the Work Address;[38]
[38]Hutchinson Affidavit, [8(p)]; Exhibit CH-4.
(vi)30 January 2015, by post to the Work Address;[39]
[39]Hutchinson Affidavit, [8(r)]; Exhibit CH-4.
(vii) 13 July 2016, by post to the Tivoli Place Address;[40] and
(viii) 2 August 2016, by post to the Tivoli Place Address.[41]
[40]Hutchinson Affidavit, [8(v)]; Exhibit CH-4.
[41]Hutchinson Affidavit, [9(h)]; Exhibit CH-4.
When contact was able to be made with Jackman, on numerous occasions he told Credit Corp that he did not want to talk about the Judgment, did not intend to satisfy it, and that Credit Corp ought to take him to court.[42] It is fair to say that from the account summary notes, the records made of those conversations indicate that Jackman at times used colourful language when communicating with Credit Corp employees or agents. Without detailing the content of each of those calls here, I am satisfied that the above description is accurate. Choosing two examples:
(a) on 23 September 2014, Credit Corp’s field agent attended the Work Address to speak with Jackman but he was not present. The agent left his calling card and contact details with the receptionist at Solution Search. The next day, Credit Corp’s field agent received a call from Jackman who said he was not interested in dealing with Credit Corp and if Credit Corp wanted to it could serve him with legal documents;[43] and
(b) on 26 July 2017, Mr Paraiso spoke with Jackman on his mobile telephone number, who said he had nothing to say in relation to his outstanding debt.[44]
[42]In his affidavit, Mr Hutchinson refers to many of these calls spanning the period from 4 April 2014 to 12 July 2016: Hutchinson Affidavit, [8].
[43]Hutchinson Affidavit, [8(m), (n)]; Exhibit CH-3.
[44]Paraiso Affidavit, [6(a)].
In addition, regular searches were made to locate Jackman and/or assets owned by him. Those searches, with the exception of the one referred to below, indicated that Jackman did not hold any property against which the Judgment could be enforced.[45]
[45]Ledgard Affidavit, [8(b)], in respect of searches done between 18 November 2013 and 23 January 2014; Fahey Affidavit, [6(b)], in respect of searches done on 2 July 2014; Hutchinson Affidavit, [8(l)], in respect of searches done on 12 September 2014; Hutchinson Affidavit, [8(o)], in respect of searches done on 2 October 2014; Hutchinson Affidavit, [8(t)], in respect of searches done between 2 March 2015 and 11 July 2016; Hutchinson Affidavit, [8(w)], in respect of searches done on 21 July 2016.
It was not until July 2016 that Credit Corp, through one of its searches, learned that Jackman was now one of two registered proprietors of the property located at 136 Stuart Street, Echuca, Victoria (‘Property’). Mr Paraiso deposes that a search was done of the title to the Property on 21 July 2016.[46] That title search reveals that on 20 April 2016, Jackman became one of two registered proprietors of the Property. After identifying the Property as an asset against which enforcement of the Judgment may be sought, Credit Corp then set about taking the necessary steps towards that end.[47]
[46]Paraiso Affidavit, [6(b)].
[47]Hutchinson Affidavit, [8(y)-(dd)].
Those steps included registering the Judgment in the Magistrates’ Court on 28 February 2017 and obtaining a warrant of seizure and sale from the Magistrates Court on 1 September 2017, which was returned unsatisfied in October 2017. After obtaining the Certificate on 27 October 2017, Credit Corp then had the Judgment registered in this Court on 29 November 2017. These steps are all necessary before leave from this Court to issue a warrant against the Property could be obtained. After registration in this Court, Credit Corp spent some months collating instructions for its solicitors from employees and in respect of former employees who had had conduct of the file.
Jackman’s evidence
Jackman says that he received the Application and copies of the Di Rago and Hutchinson Affidavits by post on 12 June 2018. He then deposes to discussions he had with his solicitor the next day where Mr Ryan told him that it was an application by Credit Corp for leave to issue a warrant.[48]
[48]Jackman Affidavit, [3].
Jackman then says ‘I can no longer recall how I became aware. I had thought Citigroup must have written the debt off’.[49] He does not say what it is that he no longer recalls becoming aware of: presumably, it is the Judgment.
[49]Jackman Affidavit, [4].
Jackman goes on to say:[50]
I received a number of telephone calls around that time[51] from someone who would not reveal their name to me and, in a very aggressive tone, demanded personal information about me. I ordinarily responded to these telephone calls by saying to them, generally, to put something in writing or to show me some legal document.
[50]Jackman Affidavit, [5].
[51]Jackman does not say what ‘time’ he is referring to and it is not readily discernible from his affidavit what it may be.
Credit Corp’s submissions
Credit Corp refers to Dennehy[52] and Ehrenreich v Kwong[53] and submits that the primary factors where there has been delay include:
[52][2001] VSC 447, [11].
[53][2002] VSC 477, [8]-[9], [11], [14].
(a) whether the plaintiff remains entitled to proceed to execution on the judgment;
(b) whether the plaintiff had made attempts to seek payment of the judgment debt during the initial six year period;
(c) whether the delay in enforcement points to an abandonment of rights or indifference to the plaintiff’s rights to enforce; and
(d) whether there was a ‘reasonable commercial decision’ to refrain from pursuing the judgment.
In respect of these matters, Credit Corp submits that it:
(a) remains entitled to proceed to execution on the Judgment;
(b) made numerous attempts to seek payment of the Judgment debt both before and after the initial six year period following obtaining of the Judgment; and
(c) made a reasonable commercial decision to refrain from pursuing the Judgment until it was satisfied there were assets in respect of which it could enforce the Judgment.
Further, Credit Corp replies on the passage in Ehrenreich v Kwong where Balmford J stated that ‘It is for the debtor to seek out the creditor and not vice versa’.[54]
[54][2002] VSC 477, [14].
To the extent that the period after July 2016 to May 2018 (when the Application was made) is seen as a relevant delay, Credit Corp submits that this is explained by the following:
(a) there was a delay in registering the Judgment in the Magistrates’ Court of Victoria. Attempts were made to do this, beginning on 17 August 2016, but Credit Corp was informed there were some irregularities with the registration application and it was ultimately registered on 28 February 2017.[55] After that date, Credit Corp made further attempts, as referred to in paragraphs 41(i) and 41(j) above, to resolve it commercially, without success. On 29 June 2017, Credit Corp instructed Gadens to progress a warrant of seizure and sale, however it was informed there was a backlog at the court. It was issued on 1 September 2017 and returned unsatisfied around 10 October 2017.[56] The Certificate was then issued on 27 October 2017 and registered in the Supreme Court on 29 November 2017; and
(b) after that time, Credit Corp and its lawyers compiled evidence for the Application.[57]
[55]Hutchinson Affidavit, [8(y)].
[56]Hutchinson Affidavit, [8(z)-(bb)].
[57]Hutchinson Affidavit, [8(cc)].
Jackman’s submissions
Jackman submitted that no reason had been given for not taking enforcement steps in the period between 2008 and the assignment in 2013. He also submitted that there had been no reasons given for the period after that, but acknowledged that the Court may say that there was no reason to take enforcement steps if there was no obvious assets.
Jackman submitted that there was no reason given for the periods after mid-2016 when there was little action taken, saying that Credit Corp had not acted promptly even after it became aware of the Property.
Jackman also submitted that since interest was accruing on the Judgment, he is entitled to say that Credit Corp ought to have been more active.
Analysis
I accept Credit Corp’s submissions in relation to the issue of delay. The affidavits set out, in considerable detail, the reasons for delay. Credit Corp made many attempts to seek payment of the Judgment debt from shortly after it was assigned. There is no evidence at all that Credit Corp abandoned its rights or was indifferent to its right to enforce: rather, the evidence discloses that it regularly and periodically attempted to procure payment but Jackman made it clear he would not co-operate or pay the Judgment. In the absence of any evidence to establish that there was any property or assets against which the Judgment could be enforced, it was a ‘reasonable commercial decision’ for Credit Corp to refrain from pursuing enforcement. It conducted regular searches to ascertain whether that situation had altered, and when it learned of the Property in July 2016, it attempted to pursue the Judgment.
I do not accept Jackman’s evidence and submissions that he thought Citigroup had written the debt off. Nor do I accept that he was unaware of Credit Corp or its rights in respect of the Judgment, which seems to be the inference he seeks the Court to draw from his statement that he just got telephone calls from persons who wouldn’t reveal their names to him. There is overwhelming evidence of many telephone conversations with Jackman where he was aware it was Credit Corp and why they were calling. There is also the evidence regarding the field agent’s visit in September 2014. The evidence discloses that many letters and notices were sent to Jackman at addresses where he was either living or working throughout the period from 2013 to 2017. For the sake of completeness, even if I did accept the evidence that he thought the debt had been written off, I do not consider that belief to be reasonably based.
In any event, it is readily apparent that Credit Corp had not abandoned its rights in respect of the Judgment. The many instances of Credit Corp attempting to obtain payment are evidence of that. True it is that there is, as Jackman submitted, no evidence of reasons for not enforcing the Judgment before the assignment. However, there is simply no evidence as to that period at all. Nonetheless, given that Credit Corp commenced its attempts to pursue the Judgment before the end of the initial six year period, I do not consider that much turns on this.
True it is that interest was accruing throughout all of this time. In circumstances where Jackman actively avoided engagement with Credit Corp and did not deal with the Judgment which had been obtained against him, including at times expressing outright hostility to attempts to obtain payment and an unwillingness to pay, the accrual of interest on a Judgment which he would not pay and where he had no assets against which enforcement could be levied is not a matter which weighs against the exercise of the Court’s discretion to grant the Application.
I also accept that, faced with the information that there were no assets against which the Judgment could be enforced, it was a reasonable commercial decision for Credit Corp to refrain from taking steps until there were such assets available. It was not until April 2016 when Credit Corp could have learned of this, and it was not long after that time when their searches revealed the existence of the Property.
Having identified the Property as a relevant asset, Credit Corp took steps to enforce against it. While some of those steps could be said to have taken longer than desirable, I consider that any delay after identifying the Property has been sufficiently explained. For example, having registered the Judgment in the Magistrates Court, it was reasonable for Credit Corp to make another attempt to resolve the matter without resorting to enforcement. That change in circumstances may well have, but did not, produce a different response from Jackman. I do not accept Jackman’s submission that there were delays in seeking leave to issue a warrant after the Property was identified which justify refusing the Application.
Credit Corp’s entitlement to proceed to execution on the Judgment
Section 105(5) of SEPA provides:
A judgment is capable of being enforced in or by a court of a State in which it is registered only if, and to the extent that, at the time when the proceeding for enforcement is or is to be taken, the judgment is capable of being enforced in or by:
(a) the court of rendition; or
(b) a court in the place of rendition.
Therefore, the Judgment may only be enforced in the Magistrates’ Court of Victoria if it was capable of being enforced in the Local Court of New South Wales. By the Limitations Act 1969 (NSW), the Judgment is capable of enforcement in the Local Court of New South Wales until 18 February 2020.
Since Credit Corp has established the assignment to it of the Judgment and that it remains enforceable by a court in the place of its rendition, Credit Corp has established that it is entitled to proceed to execution on the Judgment.
Jackman’s liability to execution on the Judgment
As referred to above, the evidence establishes that the Judgment has not been satisfied and therefore Jackman is liable to execution on the Judgment.
In submissions on his behalf, Jackman submitted that enforcement against the Property was futile. I was not taken to any authority to establish that this was a factor relevant to the exercise of the discretion.
Jackman states that he is the sole director and shareholder of Solution Search and that this is his sole source of income other than rent from the Property. He states that he is ‘without assets other than deposed to here’.[58] He does not say what his income from Solution Search is.
[58]Jackman Affidavit, [1], [8].
Jackman states that he and the other registered proprietor, Kelly Patricia Minns, purchased the Property for $258,000 in 2016. He says that the rent is ‘far less than the repayments’ and that Westpac Bank has a mortgage on the Property to secure a loan of $285,000.[59]
[59]Jackman Affidavit, [1], Exhibits A, B and C thereto.
Jackman also states that ‘it would be commercially reasonable decision [sic] by the original creditor to write off this debt’.[60]
[60]Jackman Affidavit, [8].
Apart from the matters set out in paragraphs 66 to 69 above and his submissions as to the consequences of the delay in respect of the accrual of interest (which I have already rejected), there was no submission made as to prejudice to Jackman arising from the enforcement of the Judgment. I agree with Derham AsJ in Saggese that ‘financial hardship in consequence of execution of a judgment validly entered against the judgment debtor is not prejudice that is relevant to the exercise of the discretion’.[61] In any event, there was no evidence before me as to ‘financial hardship’. Whether or not execution against the Property is likely to lead to Credit Corp receiving the amount owing, particularly when the evidence in that regard is inconclusive (for example, there is no evidence as to the value of the Property), is not evidence of financial hardship. Even if the question of futility was relevant to the exercise of the discretion, I am not persuaded that it is futile in this instance.
[61][2018] VSC 40, [96].
Conclusion
Accordingly, I will make orders granting the Application, so that Credit Corp has leave to issue a warrant to enforce the Judgment.
I will hear the parties as to the form of orders and as to costs.
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