Eschenko v Shillcock - [2003] QDC 237

No judgment structure available for this case.

[2003] QDC 237

DISTRICT COURT
CIVIL JURISDICTION
JUDGE DODDS
No 744 of 2002

RUSLAN LEONIDOVICH ESHCHENKO Applicant
and
RICHARD JOHN SHILLCOCK Respondent
SOUTHPORT
..DATE 25/07/2003
JUDGMENT

25072003 T13/KW M/T 1/2003 (Dodds DCJ)

HIS HONOUR: There were two applications before me. One by 1
the plaintiff to set aside an enforcement warrant authorising
payment of a money order by instalments, the other by the
defendant to remove a mareva injunction.

On 20 January 2003 in the District Court at Southport a 10
judgment was entered for the plaintiff against the defendant
for $248,956.62 including $6,536.97 interest to the 20th
January 2003 and $1,419.65 for costs.
It was further ordered that enforcement of the judgment be
20
stayed to the extent of $56,000 until trial of the defendant's
counter-claim or earlier order. The judgment was pursuant to
a consent order made on 29th November 2002.
On 29th November 2002, the plaintiff, judgement creditor made
a demand of the defendant, judgement debtor for payment of the 30
amount, immediately payable pursuant to the judgment within
seven days.
On 5th December 2002, the defendant proposed payment over one
year. This was rejected in writing by the plaintiff on the 40
29th January 2003. Further correspondence ensured wherein the
plaintiff rejected the defendant's proposals of payment.
On 18th March 2003 a bankruptcy notice was served on the
defendant. Meanwhile, on 3rd March 2003 the defendant made an 50
application to the Court for an order that he pay the money
order by instalments. Such an application is provided for in
chapter 19 part 7 of the Uniform Civil Procedure Rules (UCPR).

JUDGMENT

2 60

25072003 T13/KW M/T 1/2003 (Dodds DCJ)

The application was supported by a declaration by the 1
defendant regarding his financial position. Form 71. The
application was apparently successful. The registrar made an
order for an enforcement warrant by instalments. $5,000 per

month was to be paid commencing 1 March 2003, with the 10
additional amount for costs and interest to be paid by 31
March 2006.
The warrant meant that the last payment excluding costs and 20
interest was to be on 1st March 2006. I was told that there
had been an earlier informal approach to the Registrar monthly
payments to be of a greater amount.
The application to the Registrar, which was successful 30
occurred without any notice to the judgment creditor.
On 20th March 2003 solicitors for the defendant served on
solicitors for the plaintiff the sealed enforcement warrant 40
for payment by instalments.

On 28th March 2003 in response to the plaintiff's solicitor's queries, the defendant's solicitors provided a copy of the
50
form 71 referred to above. At the same time two payments of
$5,000 were received from the defendant (presumably payments 1
and 2 according to the enforcement warrant for payment by

JUDGMENT

3 60

25072003 T13/KW M/T 1/2003 (Dodds DCJ)

instalments). Since, further payments of $5,000 have been 1
made.
Investigations were made by the plaintiff's solicitors. On

27th May 2003 the plaintiff applied for and obtained an order 10
ex parte for an injunction (the mareva injunction) restraining
the defendant from "disposing of or dealing in any way with
his property or other assets (including removing such property
or assets from Australia) whether in his own name or not and 20
whether solely or jointly owned or not (except to the extent
that the value of the defendant's unencumbered interest in his
property or other assets does not fall below the amount of
$191,436.88 -----)". There were further terms to the order
which it is not necessary to set out here. 30
The defendant's position, if I set aside the enforcement
warrant by instalments is to seek an order for an enforcement
by instalments in similar terms. 40

The plaintiff's application to set aside the enforcement warrant was put on two basis. Firstly, it was submitted - it was obtained without notice to the plaintiff. Secondly, it
50
was submitted - it was issued in reliance upon a form 71
supplied by the defendant, which has been shown to be false.

JUDGMENT

4 60

25072003 T13/KW M/T 1/2003 (Dodds DCJ)

The defendant's application to remove the mareva injunction 1
did not rely upon any additional material other than a new
form 71, which shows the earlier form 71 did not disclose the
defendant's interest in five companies. It appears, however

that this form 71 also fails to reveal a liability of the 10
defendant, since discovered by the plaintiff's solicitors,
namely pursuant to a mortgage supporting the borrowing by the
defendant and another of $460,000 for five years which
mortgage is still on the title of the property charged. 20
30
40
50

JUDGMENT

5 60

25072003 D.1 T14/KB M/T 1/2003 (Dodds DCJ)

A judgement creditor is entitled to the benefit of the 1
judgement. If the amount is not immediately forthcoming, the
creditor may adopt lawful means to obtain the benefit of the
judgement. One such means is to obtain an enforcement warrant.
It is a warrant issued by a Registrar under Chapter 19 UCPR to

10

enforce a money order. If a judgement debtor pays the
judgement amount, then there is no need to enforce the order
by warrant or otherwise.
Chapter 19 UCPR contains a variety of provisions relating to

20

enforcement warrants including part 7 of Chapter 19 providing
for enforcement warrants for payment of a money order by
instalments.
Rule 868(2) provides that the Court may, on application of a

30

party, issue an enforcement warrant authorising satisfaction of an order debt by instalment payments either when making a money order, or at any time after the order issues.
Rule 869(1) sets out matters the Court must have regard to in

40

deciding whether to issue an enforcement warrant authorising
payment by instalments. One of the provisions directs
attention to whether the debt, including any interest, will be
satisfied within a reasonable time. Another applies if the
applicant is the enforcement debtor and directs attention to

50

whether the issue of the warrant sought would be consistent
with the public interest in enforcing orders efficiently and
expeditiously having regard to the availability of other
enforcement means.
25072003 D.1 T14/KB M/T 1/2003 (Dodds DCJ) 6 JUDGMENT 60

1

Rule 869(2) provides that in deciding the amount and timing of the instalments, the Court must be satisfied the warrant will not impose unreasonable hardship on the enforcement debtor.

10

Rule 871 provides that the Court may, on application of an enforcement creditor, or enforcement debtor, set aside, suspend or vary an enforcement warrant. Any such order must be served upon the other party.

20

Rule 870 prevents any other enforcement warrant issuing in relation to a money order, while an enforcement warrant authorising payment by instalments is enforced unless the Court otherwise orders.

30

It is true as the defendant submits that there is no provision in part 7 requiring service of an application for enforcement warrant for payment of a money order by instalments, and that provision is made for an application to be made by an enforcement debtor.

40

In my opinion an application by an enforcement debtor for such a warrant must be made on notice to the enforcement creditor. It must be served. An application for an enforcement warrant is an application to start a proceeding. See the meaning of

50

proceeding in schedule 2 to the Supreme Court Act 1991, and is
an originating process for the proceeding, when issued by the
Court, see Rule 8 UCPR.

7 JUDGMENT 60

25072003 D.1 T14/KB M/T 1/2003 (Dodds DCJ)

Rule 27 UCPR provides it must be served on each respondent 1
unless the rules, an Act or another law permits the
application to be heard and decided without being served.
In the case of an application by an enforcement creditor, the

10

rules provide it may be made without notice to another party,
see Rule 817(2).
In this case, with respect to an application for such an enforcement warrant, the enforcement creditor is the

20

respondent, see Rule 26(2) UCPR.
With the exception of an enforcement warrant authorising payment by instalments by an enforcement debtor, has no interest in obtaining an enforcement warrant. Plainly an

30

enforcement creditor has an interest in obtaining an
enforcement warrant. And one authorising payment of a money
order by instalments is plainly one the enforcement creditor
should have the opportunity to address.

40

As I have already indicated, in this case, after the warrant was issued ex parte, investigations by the enforcement creditor revealed that the enforcement debtor had not disclosed assets.

50

I set aside the enforcement warrant authorising payment by
instalments issued 3 March 2003.

8 JUDGMENT 60

25072003 D.1 T14/KB M/T 1/2003 (Dodds DCJ)

I refuse the present application to order another enforcement 1
warrant authorising payment by instalments. The material
before me shows that the second Form 71 fails to disclose a
significant liability, namely the mortgage referred to above.
Additionally, it is impossible to see from the information

10

provided in either Form 71, how payments of $5,000 a month can
be made by the enforcement debtor. Those payments made to
date have been by cheque drawn by a proprietary company,
Sealcrest Pty Ltd, of which it appears, from the second Form
71, the enforcement debtor is a shareholder.

20

Regarding the Mareva injunction, no material other than the second Form 71 has been put before me. The Judge who made the order plainly considered on material then before him it should be made.

30

The injunction will continue until further order.
The parties have liberty to apply on three days' notice.

40

I order the respondent pay the applicant's costs of and incidental to the application to set aside the warrant.
That deals with all matters, gentlemen.

50

-----

9 JUDGMENT 60

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Eschenko v Shillcock [2003] QDC 237

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RUSLAN LEONIDOVICH ESHCHENKO	Applicant
and
RICHARD JOHN SHILLCOCK	Respondent
SOUTHPORT ..DATE 25/07/2003
JUDGMENT

HIS HONOUR: There were two applications before me. One by	1
the plaintiff to set aside an enforcement warrant authorising
payment of a money order by instalments, the other by the
defendant to remove a mareva injunction.
On 20 January 2003 in the District Court at Southport a	10
judgment was entered for the plaintiff against the defendant for $248,956.62 including $6,536.97 interest to the 20th January 2003 and $1,419.65 for costs.
It was further ordered that enforcement of the judgment be
20
stayed to the extent of $56,000 until trial of the defendant's
counter-claim or earlier order. The judgment was pursuant to
a consent order made on 29th November 2002.
On 29th November 2002, the plaintiff, judgement creditor made
a demand of the defendant, judgement debtor for payment of the	30
amount, immediately payable pursuant to the judgment within
seven days.
On 5th December 2002, the defendant proposed payment over one
year. This was rejected in writing by the plaintiff on the	40
29th January 2003. Further correspondence ensured wherein the plaintiff rejected the defendant's proposals of payment.
On 18th March 2003 a bankruptcy notice was served on the
defendant. Meanwhile, on 3rd March 2003 the defendant made an	50
application to the Court for an order that he pay the money order by instalments. Such an application is provided for in chapter 19 part 7 of the Uniform Civil Procedure Rules (UCPR).

The application was supported by a declaration by the	1
defendant regarding his financial position. Form 71. The
application was apparently successful. The registrar made an
order for an enforcement warrant by instalments. $5,000 per
month was to be paid commencing 1 March 2003, with the	10
additional amount for costs and interest to be paid by 31 March 2006.
The warrant meant that the last payment excluding costs and	20
interest was to be on 1st March 2006. I was told that there had been an earlier informal approach to the Registrar monthly payments to be of a greater amount.
The application to the Registrar, which was successful	30
occurred without any notice to the judgment creditor.
On 20th March 2003 solicitors for the defendant served on
solicitors for the plaintiff the sealed enforcement warrant	40
for payment by instalments.
On 28th March 2003 in response to the plaintiff's solicitor's queries, the defendant's solicitors provided a copy of the
50
form 71 referred to above. At the same time two payments of $5,000 were received from the defendant (presumably payments 1 and 2 according to the enforcement warrant for payment by

instalments). Since, further payments of $5,000 have been	1
made.
Investigations were made by the plaintiff's solicitors. On
27th May 2003 the plaintiff applied for and obtained an order	10
ex parte for an injunction (the mareva injunction) restraining
the defendant from "disposing of or dealing in any way with
his property or other assets (including removing such property
or assets from Australia) whether in his own name or not and	20
whether solely or jointly owned or not (except to the extent
that the value of the defendant's unencumbered interest in his
property or other assets does not fall below the amount of
$191,436.88 -----)". There were further terms to the order
which it is not necessary to set out here.	30
The defendant's position, if I set aside the enforcement
warrant by instalments is to seek an order for an enforcement
by instalments in similar terms.	40
The plaintiff's application to set aside the enforcement warrant was put on two basis. Firstly, it was submitted - it was obtained without notice to the plaintiff. Secondly, it
50
was submitted - it was issued in reliance upon a form 71 supplied by the defendant, which has been shown to be false.

The defendant's application to remove the mareva injunction	1
did not rely upon any additional material other than a new
form 71, which shows the earlier form 71 did not disclose the
defendant's interest in five companies. It appears, however
that this form 71 also fails to reveal a liability of the	10
defendant, since discovered by the plaintiff's solicitors,
namely pursuant to a mortgage supporting the borrowing by the
defendant and another of $460,000 for five years which
mortgage is still on the title of the property charged.	20
30
40
50

A judgement creditor is entitled to the benefit of the	1
judgement. If the amount is not immediately forthcoming, the creditor may adopt lawful means to obtain the benefit of the judgement. One such means is to obtain an enforcement warrant. It is a warrant issued by a Registrar under Chapter 19 UCPR to

Rule 27 UCPR provides it must be served on each respondent	1
unless the rules, an Act or another law permits the application to be heard and decided without being served.
In the case of an application by an enforcement creditor, the

I refuse the present application to order another enforcement	1
warrant authorising payment by instalments. The material before me shows that the second Form 71 fails to disclose a significant liability, namely the mortgage referred to above. Additionally, it is impossible to see from the information