Dennehy v Reasonable Endeavours Pty Ltd - [2001] VSC 447

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 2063 of 1991

GRAEME PETER DENNEHY	Plaintiff
v.
REASONABLE ENDEAVOURS PTY. LTD.	Defendant

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JUDGE:	PAGONE, J.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	29 AND 30 OCTOBER, 9 AND 16 NOVEMBER 2001
DATE OF JUDGMENT:	23 NOVEMBER 2001
CASE MAY BE CITED AS:	DENNEHY v. REASONABLE ENDEAVOURS PTY. LTD.
MEDIUM NEUTRAL CITATION:	[2001] VSC 447

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CATCHWORDS: Leave to execute after six years – Rule 68.02(4) – Reasons for delay - Entitlement to proceed – Accord and satisfaction – Arrangement making execution unjust or inequitable – Onus of proof.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. J. Delany	Minter Ellison
For the Defendant	Mr. G.T. Bigmore and Mr. S. Minahan	Septimus Jones & Lee

A. Issues in the proceeding

This is an appeal pursuant to Rule 77.05 from the orders made by Master Wheeler on 1 October 2001 granting to the respondent leave to issue a warrant of execution to enforce the judgment of Ormiston, J. made on 28 November 1991. The nature of the appeal from the Masters’ Order is by re-hearing de novo (see Rule 77.05 (7)) and, in this case, concerned issues of the credit of witnesses who had given evidence before the Master and subsequently gave evidence before me.

The application by the plaintiff/respondent for leave to issue a warrant of execution was made under Rule 68.02 (1). That rule prevents the issue of a warrant of execution without the court’s leave in circumstances which include those found in this case; namely, where six years have elapsed since the judgment took effect: Rule 68.02 (1) (a). The power to grant leave resides in Rule 68.02 (1) and, so found, confers a broad discretion upon the court. Rule 68.02 (4), however, requires that an application for leave be supported by evidence on affidavit showing a number of matters. It is common ground between the parties that the matters, which the plaintiff/respondent needs to show in this application are those identified in sub-paragraphs 68.02(4)(a) (the amount due, including interest on the date of the application), 68.02(4)(b) (the reasons for the delay), 68.02(4)(e) (that the applicant is entitled to proceed to execution on the judgment) and 68.02(4)(f) (that the person against whom execution is sought is liable to execution on the judgment); conversely, it is common ground that sub-paragraphs 68.02(4)(b), (c), and (d) do not apply in this case.

The plaintiff’s evidence before commencement of the hearing was that in three affidavits and their exhibits: namely, an affidavit of Graeme W. Briggs, dated 29 June 2000, and the two affidavits of Mathew John Annells, dated 8 May and 9 October 2001 respectively. The defendant’s evidence before commencement of the hearing was that in the exhibits and affidavits of Graeme Peter Dennehy. That evidence was added to by the oral evidence and the additional exhibits tendered at the hearing before me.

B. Amount Due

There was no dispute between the parties concerning the…

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.

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Details

Case: [2001] VSC 447
Decision Date: 23 November 2001

CaseChat Overview and Summary

Dennehy v Reasonable Endeavours Pty Ltd was a case involving a dispute between the plaintiff, Dennehy, and the defendant, Reasonable Endeavours Pty Ltd. The case arose from a legal action in the Federal Circuit Court, which culminated in an application for leave to execute a judgment six years after it was issued. The primary issue before the court was whether the plaintiff was entitled to proceed with the enforcement of the judgment under Rule 68.02(4) of the Federal Circuit Court Rules, given the significant delay in applying for execution.

The court had to determine whether the delay in seeking to enforce the judgment was unreasonable and, if so, whether any of the exceptions to the general rule against delayed enforcement applied. The defendant argued that the delay was unjust and inequitable, citing the passage of time and the potential for an accord and satisfaction, or an arrangement between the parties, to have occurred during the interim. The onus of proving that the delay was justified fell on the plaintiff.

The court considered the nature and reasons for the delay, the impact of the passage of time on the fairness of enforcing the judgment, and the evidence of any arrangement between the parties. It was determined that the plaintiff had not adequately justified the delay or demonstrated that the enforcement of the judgment would not be unjust or inequitable. Consequently, the court dismissed the application for leave to execute the judgment. The reasoning was based on the weight of the delay and the lack of sufficient evidence to support an exception to the general rule against delayed enforcement. The court made no order for the enforcement of the judgment.

Orders