Citigroup Pty Ltd v Jackman - [2018] VSC 545

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…

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.

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Details

Case: [2018] VSC 545
Decision Date: 21 September 2018

CaseChat Overview and Summary

The case of Citigroup Pty Ltd v Jackman, before the Supreme Court of Victoria, involved a dispute over the issuance of a warrant of execution for a judgment debt. The judgment had been obtained more than six years prior, and there had been a change in the identity of the person entitled to execution under the judgment due to an equitable assignment. The legal issue before the court was whether the delay in applying for the warrant of execution was justified, and whether the equitable assignment was sufficient to allow the new creditor to enforce the judgment. The court had to consider the relevant rules and precedents, including Supreme Court (General Civil Procedure) Rules 2015, r 68.02, Commonwealth Bank of Australia v Saggese, and Dennehy v Reasonable Endeavours Pty Ltd.

The court examined the reasons for the delay in applying for the warrant of execution and found the evidence provided by the applicant to be satisfactory. The court recognised that the delay did not necessarily bar the application for the warrant of execution, as there had been an equitable assignment of the judgment debt. The court also noted that the applicant had acted diligently in pursuing the enforcement of the judgment once it became aware of the assignment. In light of these factors, the court exercised its discretion to grant leave for the warrant of execution to be issued, in accordance with the relevant rules and precedents.

Based on the court's reasoning and the evidence presented, the Supreme Court of Victoria granted leave for the warrant of execution to be issued in favour of the assignee of the judgment debt. The court's decision highlights the importance of acting promptly in enforcing a judgment, particularly in cases where there has been a change in the identity of the person entitled to execution under the judgment. The court also emphasised the role of equitable assignment in allowing a new creditor to enforce a judgment debt, provided that the delay in applying for the warrant of execution can be justified.

Orders