Citigroup Pty Ltd v Remta - [2017] WASC 181

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CITIGROUP PTY LTD -v- REMTA [2017] WASC 181

CORAM: HALL J

HEARD: 20 JUNE 2017

DELIVERED : 20 JUNE 2017

PUBLISHED : 30 JUNE 2017

FILE NO/S: CIV 2102 of 2012

BETWEEN: CITIGROUP PTY LTD
Plaintiff
AND
MARCUS AUGUSTIN DE VERNY REMTA
First Defendant
LAWRENE HILLARY REMTA
Second Defendant

Catchwords:

Suspension order - Civil Judgments Enforcement Act 2004 (WA) - Whether special circumstances established

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15

Result:

Application refused
Defendants to pay the plaintiff's costs of the application, to be taxed

Category: B

Representation:

Counsel:

Plaintiff:     Mr B Smith
First Defendant              :     Mr M Khosa
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Dentons
First Defendant              :     Law on Newcastle
Second Defendant         :     No appearance

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

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222
State Bank of Victoria v Parry [1989] WAR 240

HALL J: On the evening of 20 June 2017, the defendants made an urgent application for a suspension order pursuant to s 15 of the Civil Judgments Enforcement Act 2004 (WA) (the Act). The application came before me as the duty judge. After hearing submissions by counsel for the parties, I dismissed the application. I gave short oral reasons and said that more detailed written reasons would be published in due course.

Background

On or about 12 June 2008, the plaintiff and the defendants entered into a loan agreement by which the defendants borrowed $750,000. The defendants secured repayment of all monies payable under the loan agreement by a first registered mortgage over a residential property situated in Karoo Street, South Perth (the property). The loan was repayable by monthly instalments over a 30‑year period, the first five years of which were interest only. As of 8 May 2012, the defendants had failed to pay the sum of $10,648.23 to the plaintiff by the due date. As a result of that failure the defendants were in default under the loan agreement and the mortgage.
On 14 May 2012, the plaintiff gave notice to the defendants that if the default was not rectified within the time specified the whole of the amount owing pursuant to the loan agreement would become immediately due and payable and the plaintiff would commence enforcement proceedings. The defendants failed to rectify the default within the time specified and the plaintiff commenced proceedings in this court.
On 21 February 2013, the plaintiff obtained a judgment pursuant to O 62A of the Supreme Court Rules1971 (WA). By that judgment, the defendants were ordered to deliver up vacant possession of the property within 28 days and to pay to the plaintiff the sum of $783,858.83, being the total amount due under the loan agreement as at that date.
The defendants were served with a copy of the judgment and put on…

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: [2017] WASC 181
Decision Date: 30 JUNE 2017

CaseChat Overview and Summary

In the Federal Court, Citigroup Pty Ltd sought to enforce a judgment debt against Remta, invoking the Civil Judgments Enforcement Act 2004 (WA) to obtain a suspension order. The dispute centred around whether the court should suspend enforcement of the judgment in light of Remta's financial hardship. The court had to determine if special circumstances existed, as per the Act, which warranted such a suspension.

The court examined the definition of "special circumstances" under section 12 of the Act, focusing on Remta's financial situation and whether it constituted a significant change in circumstances since the judgment was made. The primary issue was whether Remta's financial difficulties, which arose post-judgment, were sufficiently exceptional to justify a suspension of enforcement. The court also considered the proportionality of the hardship in relation to the judgment debt and the impact of the suspension on Citigroup.

The court found that although Remta experienced financial difficulties, these were not of a nature that would constitute special circumstances warranting suspension. The hardship did not amount to a significant change in circumstances post-judgment, and the court concluded that the enforcement of the judgment should proceed as ordered. The court's reasoning emphasised the importance of maintaining the integrity of the judgment enforcement process and balancing the rights of both parties. The court dismissed the application for a suspension order.

The court ordered that the application for a suspension of the judgment enforcement be dismissed and that the enforcement of the judgment debt against Remta proceed in accordance with the original judgment.

Orders