Dart v Singer

[2014] QSC 316

SUPREME COURT OF QUEENSLAND

CITATION:

Dart & anor v Singer & ors [2014] QSC 316

PARTIES:

FREDERICK WILLIAM DART
(first applicant)
and
MEGAN ANN HAJRIDIN
(second applicant)
v
CLIFFORD SINGER
(first respondent)
and
ROYAL SOCIETY FOR PREVENTION OF CRUELTY TO ANIMALS QUEENSLAND INC
(second respondent)
and
DEPARTMENT OF ENVIRONMENT, ECONOMIC DEVELOPMENT AND INNOVATION
(third respondent)

FILE NO/S:

51 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

31 October 2014 (ex tempore)

DELIVERED AT:

Townsville

HEARING DATE:

31 October 2014

JUDGE:

Carmody CJ

ORDERS:

1.   The application is refused;

2.   Order that the applicants pay the respondents’ costs fixed at $3,000.

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – where applicants apply for judgment debt to be enforced through an instalment order – where respondents contend that such an order would be unreasonable and futile – whether circumstances justify payment of judgment debt in instalments

Hellier Capital Pty Ltd v Richard Albarran [2009] NSWSC 403, cited

COUNSEL:

FW Dart for the applicants (self-represented).
AJ Hocking for the respondents.

SOLICITORS:

Roberts Nehmer McKee for the respondents.

THE CHIEF JUSTICE:   This is an application by judgment debtors for an enforcement order under r 868 at the rate of $125 per week over an estimated period of five years.  The application is opposed on a number of grounds:  (a) there is no definite financial plan for the payment of specific sums at regular intervals until the debt is satisfied; (b) it is unreasonable to extend payment over a period of five years;  (c) any proposal for the instalment payments would ultimately be futile;  and (d) this is the time to draw a line in the sand to end litigation between the parties.

Unless the instalment order is made, the applicants are likely to be forced into bankruptcy.

The debt consists of assessed costs of $25,987.  No payments have been made since the debt was incurred on 29 January 2014.  The current balance is $27,385, increasing at the rate of 8.5 per cent for interest.  The respondents have made an application under a creditor’s petition seeking sequestration orders against the estates of both applicants under the Bankruptcy Act 1966 (Cth) for non-compliance with bankruptcy notices based on the judgment debt at the centre of this application.

The mandatory factors that must be taken into account in deciding whether to issue an enforcement warrant for payment of a money order or other judgment debt by instalments are set out in Rule 869.  They are: whether the enforcement debtor is employed;  the enforcement debtor’s means of satisfying the order;  whether the order debt, including any interest, will be satisfied within a reasonable time;  the necessary living expenses of the enforcement debtor and any dependants;  other liabilities;  and whether, having regard to the availability of other means of enforcement, making the order would be consistent with the public interest in enforcing money orders efficiently and expeditiously.  In deciding the amount and timing of…