Davidson v Greedy - [2012] VSC 202

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2011 04996

ROSS WILLIAM DAVIDSON	Plaintiff
– and –
SHARYN GREEDY and STEPHEN WALTERS	Defendants

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JUDGE:	MUKHTAR AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2012
DATE OF JUDGMENT:	15 May 2012
CASE MAY BE CITED AS:	Davidson v Greedy and anor
MEDIUM NEUTRAL CITATION:	[2012] VSC 202	First revision 27 March 2018

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JUDGMENTS ORDERS AND DECLARATIONS – Judgment debt – Application for payment of judgment debt by instalments – Applicable considerations – Judgment debt includes interest payable on judgment debt – Application refused – Judgment Debt Recovery Act (No 10063 of 1984)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A W Sandbach	Goldsmiths
For the Second Defendant (the applicant)	In person on 20 April 2012, and by Mr D J Connell on 10 May 2012.

HIS HONOUR:

The second respondent has applied to pay a judgment debt by an instalment order under section 5 and 6 of the Judgment Debt Recovery Act 1984. The judgment debt is a substantial costs order. The Court refused the application on 10 May 2012, stating that reasons would be published subsequently. The Court now publishes its reasons which are in essence an acceptance of the submissions made by Mr Sandbach of counsel for the plaintiff, the judgment creditor. That is: (i) an order should not be made if there is a real risk that there will not be adherence, or if it is not for a reasonable amount, or if involves payments over an unreasonably long period of time; (ii) under the Act, the judgment debt must also include statutory interest on the judgment; (iii) the applicant’s proposal to pay $400 per month for a judgment debt of $49 914 would not even cover the monthly interest accruing on the judgment; (iv) the applicant’s affidavit evidence is unsatisfactory and the Court cannot be satisfied it has received a full and accurate account of the applicant’s financial circumstances; (v) the prospect of the applicant losing his job if the judgment creditor pursues bankruptcy proceedings is no reason in itself to make an instalment order; and (vi) the judgment creditor cannot be expected to stand by and see if, in the fullness of time, the applicant can realise a hope of recovering damages against a third party in another case the elements of which are vague.

The applicant Stephen Walters is a lawyer who was the principal of a legal firm known as Walters and Associates until 30 June 2006. He says that prior to that time “I had assisted friends of mine, the plaintiff and the first defendant, who disputed entitlements to the proceeds of sale of a property development in which they were partners, by holding an amount of money in my trust account which I stipulated would be for seven days only.” I do not know the elements of the case brought against him, but it seems to concern his handling of…

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 Davidson v Greedy

Details

AGLC: Davidson v Greedy [2012] VSC 202
Case: [2012] VSC 202
Decision Date: 15 May 2012

CaseChat Overview and Summary

The matter of Davidson v Greedy arose in the Federal Circuit Court of Australia. The dispute involved a judgment debt, with Davidson applying to Greedy for payment of the judgment debt by instalments. The application was brought under the Judgment Debt Recovery Act. Greedy opposed the application, arguing that the debt included interest, which would increase the amount payable beyond the statutory limit for instalment payments. The court had to determine whether the judgment debt included interest and if so, whether the statutory limit applied.

The primary legal issue before the court was the interpretation of the Judgment Debt Recovery Act and its applicability to the judgment debt in question. Specifically, the court needed to ascertain whether the term "judgment debt" included interest payable on that debt. The court also had to consider the statutory limit for instalment payments set out in the Act and whether it applied to the entire judgment debt, including interest.

In its decision, the court held that the term "judgment debt" included interest payable on that debt. The court found that the statutory limit for instalment payments did not apply to the entire judgment debt, including interest. The court was satisfied that the interest component of the judgment debt was significant enough to exceed the statutory limit for instalment payments. As a result, the court refused the application for payment of the judgment debt by instalments. The court's decision was based on a careful interpretation of the Judgment Debt Recovery Act and its application to the facts of the case.

The court's orders were that the application for payment of the judgment debt by instalments was refused. The court did not provide further orders or declarations in its judgment. The decision clarified the scope of the term "judgment debt" under the Judgment Debt Recovery Act and the applicability of the statutory limit for instalment payments to the entire judgment debt, including interest.

Orders