Cyran v Nelson

[2014] QSC 291

SUPREME COURT OF QUEENSLAND

CITATION:

Cyran v Nelson & Ors [2014] QSC 291

PARTIES:

MICHAEL ANTHONY CYRAN (BY HIS NEXT FRIEND THOMAS MICHAEL MOYLAN)
(plaintiff)

v
JEFFREY RONALD NELSON
(first defendant)
AND
WAYSTAR ENTERPRISES PTY LTD
(ACN 072 151 547) (IN LIQUIDATION)
(second defendant and third party)
AND
AP INSURANCE BROKERS PTY LTD
(ACN 064 567 620) (IN LIQUIDATION)
(fourth party)

FILE NO/S:

416 of 2014

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED EX-TEMPORE ON:

23 October 2014

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2014 and 22 October 2014

JUDGE:

Henry J

ORDERS:

1. Pursuant to rule 799(2)(a) Uniform Civil Procedure Rules 1999 the plaintiff has leave to start enforcement proceedings against the first defendant pursuant to the Western Australian District Court judgment in this matter registered in the Cairns Supreme Court Registry.

2.   Liberty to apply on the giving of 2 clear business days notice in writing.

3.   Costs reserved.

CATCHWORDS:

PROCEDURE – JUGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – EXECUTION AGAINST THE PERSON – QUEENSLAND – GENERALLY – where the plaintiff suffered catastrophic, permanently disabling brain injury as a result of the first defendant, a nightclub security guard, assaulting him in 1996 – where the Western Australian District Court awarded judgment for the plaintiff – where the nightclub owner and insurance company went into liquidation – where the plaintiff, by his next friend, seeks to pursue the first defendant for payment of the judgment sum – whether reasons have been given for the delay in starting enforcement proceedings against the first defendant – whether the court ought give the plaintiff leave to commence enforcement proceedings against the first defendant

Civil Judgments Enforcement Act 2004 (WA) s 13
Limitations of Actions Act 1984 (Qld) s 10(4)
Service and Execution of Process Act 1992 (Cth) s 105

Uniform Civil Procedure Rules 1999 (Qld) r 799

COUNSEL:

D de Jersey for the plaintiff

C Ryall for the defendants

SOLICITORS:

MacDonnells Lawyers for the plaintiff

Bottoms English Lawyers for the defendant

HIS HONOUR: The plaintiff, by his next friend, makes application for leave pursuant to rule 799 of the Uniform Civil Procedure Rules (“UCPR”) to start enforcement proceedings against the first defendant in respect of a Western Australian judgment registered in Queensland pursuant to section 105 of the Service and Execution of Process Act 1992 (Cth).

The reasons for judgment were delivered by her Honour, Judge Kennedy, of the Western Australian District Court on 17 October 2002.  According to the reasons for judgment, her Honour awarded judgment for the plaintiff in the sum of $972,067.35.  It appears when judgment was entered some days later on 30 October 2012, nearly 12 years ago, it was in the sum of $1,065,097.35.  The sum outstanding, without the addition of interest, is said to be $1,020,097.35, reflecting a reduction of $45,000 for restitution paid by the first defendant.  A more significant amount is, of course, now owing.

As the reasons for judgment show, the plaintiff suffered a catastrophic,…