Dr Sameh Refaat v Mr Michael Barry - [2017] VSCA 362

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0115

DR SAMEH REFAAT	Applicant
v
MR MICHAEL BARRY	Respondent

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JUDGES:	WHELAN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 December 2017
DATE OF JUDGMENT:	7 December 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 362
JUDGMENT APPEALED FROM:	[2017] VCC 1375

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PRACTICE AND PROCEDURE – Judgments – Execution of judgment – Instalment orders – Stay of execution of judgment debt – Judgment debtor’s affidavit in support of application for instalment order materially misleading – Whether primary judge erred in enjoining settlement of property sale by judgment debtor without payment of judgment debt from proceeds of sale – Judgment debt paid from proceeds of sale – Discretionary decision on question of procedure – Proposed appeal having no real prospect of success – Application for leave to appeal refused – Judgment Debt Recovery Act 1984, ss 5, 6, 8, 9 and 17.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	In person

WHELAN JA

BEACH JA:

The parties to this application have been engaged in litigation since 2012. On 2 June 2014, following the trial of a claim and counterclaim in the County Court, the respondent obtained a judgment against the applicant in the sum of $81,497.64. An appeal against that order was dismissed by the Court of Appeal on 20 August 2015.[1] Following the dismissal of this appeal, various applications have been made by the parties in relation to the amount owing by the applicant to the respondent on the judgment debt. In his applications, the applicant has sought to pay the judgment debt owed by him in monthly instalments and, from time to time, to reduce the amount of those instalments. The respondent, on the other hand, has sought to recover the whole of the judgment debt owed to him.
[1]Refaat v Barry [2015] VSCA 218.

The order that is the subject of the present application for leave to appeal is an order made against the applicant by Judge Anderson on 21 September 2017. In that order, the judge enjoined the applicant from settling the sale of a property in Chirnside Park (‘the Chirnside Park property’), which property was owned by the applicant, without obtaining a bank cheque payable to the respondent in the sum of $42,874.09. This sum was the balance of the judgment debt at the time of Judge Anderson’s order, together with an allowance for interest and ancillary costs.

From the applicant’s application for leave to appeal, it appears that the sum referred to in Judge Anderson’s order ($42,874.09) was paid from the settlement of the Chirnside Park property to the respondent on 29 September 2017. Apart from seeking orders setting aside the relevant orders made by Judge Anderson on 21 September 2017, in his application for leave to appeal, the applicant seeks orders as follows:

·Refund the money paid (~$43,000) by the appellant to the respondent to this appeal on 29/09/2017.
·Compensate the plaintiff for 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.

Continue reading Dr Sameh Refaat v Mr Michael Barry

Details

AGLC: Dr Sameh Refaat v Mr Michael Barry [2017] VSCA 362
Case: [2017] VSCA 362
Decision Date: 7 December 2017

CaseChat Overview and Summary

Dr Sameh Refaat brought an action against Mr Michael Barry in the Supreme Court of Victoria, seeking to enforce a judgment debt of approximately $600,000. The judgment debtor applied for an instalment order to pay the debt, providing an affidavit which the Court found to be materially misleading. The dispute centred on the enforcement of the judgment and the appropriate procedural steps to be taken in light of the misleading affidavit.

The central legal issues revolved around whether the primary judge was correct in enjoining the settlement of the property sale by the judgment debtor without first paying the judgment debt from the proceeds of the sale. The Court needed to determine whether the primary judge's decision to issue an injunction was justified given the misleading affidavit, and whether the proposed appeal by the judgment debtor had a real prospect of success.

The Court found that the primary judge did not err in issuing the injunction, as the misleading affidavit warranted such action to protect the judgment creditor’s rights. The Court also held that the proposed appeal by the judgment debtor had no real prospect of success, and thus denied the application for leave to appeal. Consequently, the injunction remained in place, and the judgment debt was paid from the proceeds of the sale, in accordance with the court's order.

The Court ordered that the application for leave to appeal be refused and that the judgment debt be paid from the proceeds of the sale, as previously directed.

Orders