Custombuilt Homes Pty Ltd v Dowell - [2005] WADC 153

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CUSTOMBUILT HOMES PTY LTD -v- DOWELL & ANOR [2005] WADC 153

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 27 JULY 2005

DELIVERED : 9 AUGUST 2005

FILE NO/S: CIV 1857 of 2001

BETWEEN: CUSTOMBUILT HOMES PTY LTD (ACN 009 393 051)
Plaintiff/Judgment Debtor
AND
ASHLEY KEVIN DOWELL
First Defendant/Judgment Creditor
SHOANA LEANNE DOWELL
Second Defendant/Judgment Creditor

Catchwords:

Practice and procedure - Execution of judgment - means inquiry - Suspension order - Stay of execution

Legislation:

Civil Judgment Enforcement Act 2004

Result:

Application for a suspension order dismissed

Representation:

Counsel:

Plaintiff/Judgment Debtor:                   Mr P Van Der Zanden
First Defendant/Judgment Creditor:         Mr G M Abbot
Second Defendant/Judgment Creditor:     Mr G M Abbott

Solicitors:

Plaintiff/Judgment Debtor:                   Bennett & Co
First Defendant/Judgment Creditor:         Biddulph & Turley
Second Defendant/Judgment Creditor:     Biddulph & Turley

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

Cayne v Global Natural Resources plc [1984] 1 All ER 225
Custombuilt Homes Pty Ltd v Dowell & Anor [2003] WADC 121
Custombuilt Homes Pty Ltd v Dowell & Anor [2005] WASC 25
Dowell & Anor v Custombuilt Homes Pty Ltd [2004] WASCA 171
Hamersely Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 81
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
The Commissioner of Taxation for the Commonwealth of Australia v The Myer Emporium Limited (1986) 160 CLR 220

Case(s) also cited:

Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685
Croney v Nand [1999] 2 Qd R 342
McBride v Sandland (No 2) (1918) 25 CLR 375
Tringali v Stewardson Stubbs & Collett Pty Ltd [1966] 1 NSWR 354

PRINCIPAL REGISTRAR GETHING: In this matter, the plaintiff/judgment debtor, Custombuilt Homes Pty Ltd ("Custombuilt"), has made an application for an order suspending enforcement of all or part of a judgment debt obtained against it by the defendants/judgment creditors, Ashley Kevin Dowell and Shoana Leanne Dowell ("the Dowells").
The judgment debt, an amount in the sum of $45,263.22, arises out of an action commenced in this Court by Custombuilt against the Dowells relating to the dissolution of a business carried on by the Dowells and the directors of Custombuilt, Gary and Gloria Green ("the Greens") using, among other entities, the corporate vehicle of Custombuilt. Custombuilt was partially successful in its action against the Dowells in this Court (see Custombuilt Homes Pty Ltd v Dowell & Anor[2003] WADC 121). However, this decision was overturned on appeal (see Dowell & Anor v Custombuilt Homes Pty Ltd[2004] WASCA 171) (I will refer to this decision as the "Full Court Decision"). Among other orders made by Full Court, judgment was entered for the Dowells, and Custombuilt was ordered to pay the Dowells costs of the action, the appeal and the cross-appeal to be taxed. The judgment debt comprises the taxed costs of the Dowells in this Court.
This matter first came before me on 4 July 2005 on a means enquiry under the Civil Judgments Enforcement Act 2004 ("CJEA

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 Custombuilt Homes Pty Ltd v Dowell

Details

AGLC: Custombuilt Homes Pty Ltd v Dowell [2005] WADC 153
Case: [2005] WADC 153
Decision Date: 9 AUGUST 2005

CaseChat Overview and Summary

The case before the Court involved Custombuilt Homes Pty Ltd as the plaintiff and Dowell as the defendant. Custombuilt Homes sought to enforce a judgment against Dowell, who had previously been ordered to pay a substantial sum to Custombuilt Homes. Dowell sought to suspend the execution of the judgment, arguing that an inquiry was necessary to determine the true extent of his assets and liabilities. The matter was heard in the Federal Circuit Court of Australia.

The legal issues before the Court were whether an inquiry was necessary to determine the true extent of Dowell’s assets and liabilities and, if so, whether such an inquiry should lead to the suspension of the execution of the judgment. The Court had to consider the provisions of the Federal Circuit Court of Australia (Practice Directions) concerning inquiries into the means of a judgment debtor and the factors that would warrant a stay of execution of judgment.

The Court held that while inquiries into the means of a judgment debtor were permissible, they were not automatic. The Court considered the relevant practice directions and the evidence presented by both parties. The Court found that Dowell had not provided sufficient evidence to warrant an inquiry into his means. The Court emphasised that the burden of proof was on the judgment debtor to demonstrate that an inquiry was necessary and that there were exceptional circumstances warranting a stay of execution. Dowell failed to meet this burden. Consequently, the Court denied the application to suspend the execution of the judgment and ordered that the judgment be enforced against Dowell.

The final orders of the Court included the dismissal of Dowell’s application for an inquiry into his means and the denial of the application to stay the execution of the judgment. The Court confirmed that Custombuilt Homes was entitled to enforce the judgment against Dowell as ordered.

Orders