Cox v. Kriskyl Pty Ltd

[2005] QDC 198

[2005] QDC 198

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 4560 of 2004

ALVAN DOUGLAS COX	Plaintiff
and
KRISKYL PTY LTD (ACN 085 977 564)	Defendant

BRISBANCE

..DATE 14/06/2005

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 868 - successful application by judgment debtor company for an enforcement warrant for payment of the judgment by instalments - circumstances included company's having 15 staff - judgment creditor had served statutory notice of demand under companies legislation.

HIS HONOUR:  This is an application by a defendant under rule 868 in which the Court has determined to make the following order:

Upon the defendant's application made today, order that an enforcement warrant issue under rule 868 authorising payment of the default judgment for $63,488.60 entered on the 5th April 2005 by instalments as follows: $5,988.60 on or before 21st June 2005; $1,250 on or before 5 July 2005; thereafter 45 further payments of $1,250 at fortnightly intervals.

It is unusual, I would think, to have such an order made in respect of a defendant company.  Mr Bush's affidavit shows that the company employs 13 permanent staff and two casual staff.  His affidavit describes the company's 21 vehicles and the monthly costs which the company has to meet to retain possession and use of them, also its other monthly outgoings.

The application follows a default judgment for $63,010.60 entered by the Registrar on the 5th April this year.  The plaintiff's solicitors issued a statutory notice of demand under the companies legislation on the 25th May 2005 which Mr Chand - who appears for the respondent/plaintiff - explained contained an error by placing the company in the wrong State.  A corrected notice of demand for the same amount followed on the 30th May 2005.  Twenty-one days are allowed for compliance, failing which a ground for winding up of the company may be established.

It seems likely that if winding up happens, the plaintiff will be very lucky to see much of his judgment.  However, Mr Chand, appearing for the plaintiff, tells the Court his instructions are to oppose the application, the obvious purpose of which is to prevent the ground for winding up being established.

He explains his client's attitude on the basis that a previous arrangement requiring the payment of indebtedness at $5,000 per month failed.  The plaintiff is understandably concerned that exactly the same thing will happen again; however, the payment schedule is less onerous in this instance.

Rule 868 clearly contemplates that the warrant which the Court orders issue may be set aside or varied.  That gives the plaintiff the opportunity to come back to the Court if circumstances are changed, and perhaps even to seek interest. 

Mr Chand has been brought to Court very hurriedly on this special application.  What I have said should not be taken to indicate any view about interest.  Mr Kake, appearing for the applicant, has reminded the Court that, at least in the ordinary course of things, interest does not run in a liquidation.

...

HIS HONOUR:  I will order that the applicant/defendant pay the plaintiff's costs, fixed at $300.

...

HIS HONOUR:  I will stay enforcement of the costs order for 28 days.

...

HIS HONOUR:  I will make the costs amount $400.  That is not much for an afternoon away from Caboolture.

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