Geneva Finance Ltd v Bandy - [2008] WASC 236

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: GENEVA FINANCE LTD -v- BANDY [2008] WASC 236

CORAM: MASTER SANDERSON

HEARD: 5 AUGUST & 8 OCTOBER 2008

DELIVERED : 23 OCTOBER 2008

FILE NO/S: CIV 2492 of 1992

BETWEEN: GENEVA FINANCE LTD (RECEIVER & MANAGER APPOINTED)
Plaintiff
AND
LARRY WAYNE BANDY
Defendant

Catchwords:

Civil Judgments Enforcement Act 2004 (WA) - Limitation on enforcement of judgment - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 12, s 13, s 144
Limitation Act 1935 (WA), s 32

Result:

Application for leave to enforce judgment refused

Category: B

Representation:

Counsel:

Plaintiff: Mr N D C Dillon
Defendant: Mr M Ryan

Solicitors:

Plaintiff: Christensen Vaughan
Defendant: Bostock & Ryan

Case(s) referred to in judgment(s):

Nil

MASTER SANDERSON: This is the judgment creditor's application for leave to enforce a judgment. The judgment was obtained on 23 March 1994. The application is brought under s 13 of the Civil Judgments Enforcement Act 2004 (WA) (the Act).
Although the judgment was obtained long before the enactment of the Act, it was common ground between the parties that the Act applied to this application for leave to enforce. That is made plain by s 144(b) of the Act. That subsection is found in pt 22 of the Act dealing with the 'transitional provisions'. No proceedings to enforce the judgment were pending when the Act was proclaimed. Therefore, s 144(a) does not apply.
The judgment debtor responds to this application in a number of ways. First and foremost, he says that the limitation period for enforcement has expired and there is no basis upon which the judgment can be enforced. Section 12 of the Act is in the following terms:
An order under this Act to enforce a judgment that takes effect after the commencement of this Act must not be made if 12 years have elapsed since the judgment took effect.
This section is not happily worded. The judgment debtor says that the clear meaning and intent of the section is that a judgment cannot be enforced if the judgment was obtained more than 12 years before the enforcement proceedings were commenced.
The judgment creditor says that the section does not operate in that way. It was submitted that the section only deals with judgments which were obtained after the Act came into force. In other words, the reference to 'a judgment' referred to in the section is one 'that takes effect after the commencement of this Act'. That would mean that the section would have no operation until 2016 at the earliest. On the judgment creditor's case, any limitation period applicable to judgments between now and 2016 would have to be found in another enactment.
I am satisfied that s 12 is intended to operate as and from the date that the Act was proclaimed. I am supported in that view by the operation of s 144(b). If judgments obtained before the coming into force of the Act were intended to be dealt with under some other Act, at least so far as limitation provisions were concerned, s 144 or some other section would doubtless have said so. It would, after all, have been a major hiatus in the operation of the Act. To give the section the meaning contended for by the judgment creditor would, in my view, be an absurd result which should, if at all possible, be avoided.
In reaching this conclusion, I have considered the explanatory memorandum which accompanied the Civil Judgments Enforcement Bill 2003 (WA) when it was presented to the Western Australian Parliament. Reference to this memorandum is consistent with s 19(2)(e) of the Interpretation Act 1984 (WA). With reference to the then cl 12 (which is in exactly the same terms as s 12 of the Act) the memorandum says:
This clause provides that enforcement action on a judgment cannot be taken if 12 years have elapsed since the date of judgment.
The purpose of this clause is to ensure that finality is brought to the judgment creditor's rights to recover the judgment debt.
Were it the case that the limitation provision in the Bill, and subsequently the Act, were not intended to take effect until 12 years after the Act came into force, it would be reasonable to expect that the memorandum would have said so. The language of the explanatory memorandum leaves no doubt that the provisions of the Act were intended to operate in relation to any judgment obtained prior to the Act - so long as enforcement proceedings were not on foot when the Act was proclaimed.
Having reached that conclusion, I will dismiss the application. However, lest I be wrong in my conclusion, I should deal with other matters raised by the judgment debtor which, it was submitted, would preclude the judgment being enforced.
It was common ground between the parties that if s 12 of the Act did not apply, then any limitation was to be found in s 32 of the Limitation Act 1935 (WA). The judgment creditor raised a number of arguments as to why the limitation contained in that section would not apply in a case such as this. I do not propose to analyse all the arguments put by the judgment creditor. They relate to an Act which has been repealed and is unlikely to be considered in the future. For the purposes of this decision, I am prepared to accept that the judgment creditor would not be precluded under any enactment from seeking to enforce the judgment by reason of a limitation period.
But that is not the end of the matter. It was conceded by the judgment creditor that leave would be needed to enforce this judgment. That is the effect of s 13 of the Act. In particular, s 13(1)(a) requires that leave be obtained from the court to enforce a judgment if '6 years have elapsed since the judgment took effect'. That section is the reason why the judgment creditor brought this application in the first place.
The operation of s 13(1) is conditioned by s 13(2). That subsection is in the following terms:
(2)On an application for leave under subsection (1), the court -
(a)may give leave if it is satisfied that the person seeking to enforce the judgment is entitled to do so and that the person against whom the order is sought is liable to satisfy the judgment;
(b)may order the trial of any issue that needs to be decided in order to determine if the judgment may be enforced and, if it may be enforced, by whom and against whom; and
(c)may do so on terms as to costs or otherwise.
It was conceded by counsel for the judgment creditor that the terms of s 13(2) give the court a discretion to grant or refuse leave to enforce a judgment obtained more than six years before the application is brought. It is not enough that the judgment creditor satisfies the two criteria which are set out in the subsection. That is to say, if the court is satisfied that the person seeking to enforce the judgment is entitled to do so and the person against whom the order is sought is liable to satisfy the judgment, then there is still an unfettered discretion to grant or refuse leave. The corollary of that, of course, is if one or other of those two criteria were not satisfied, the court could not give leave. But in this case, as was conceded by counsel for the judgment debtor, both of the criteria were satisfied. The question then is whether, in the exercise of my discretion, I would give leave to enforce the judgment.
The answer to that question is that I would not give leave. I would not do so for a number of reasons. First, the age of the judgment. This judgment was obtained in 1994. Judgment was entered after a summary judgment application. The action itself commenced in 1992. In my view, to seek to enforce a judgment obtained more than 14 years ago is unreasonable. Too much time has passed. An individual in the judgment debtor's position is entitled to move on with his life and not have a judgment hanging over his head indefinitely. If a judgment creditor has not taken some steps within 12 years, then he has only himself to blame for an inability to enforce the judgment.
Further, there is real doubt as to what assets the judgment debtor has to satisfy the judgment. The judgment creditor seems interested in the judgment debtor's interest in a property at 6 Brittain Street, Como. The judgment debtor holds a quarter interest in that property, his brother Dennis Earl Bandy holding the remaining interest. The judgment debtor alleges that he holds that interest on trust for his mother. He sets out the circumstances in which he says the trust arose in pars 35 through to 51 of his affidavit of 29 May 2008 filed in opposition to this application.
It is not for me to decide whether in fact the judgment debtor does hold his interest in the property on trust for his mother. What is clear is that the judgment debtor raises a serious question to be tried in relation to this issue. That would mean if I were to make an order under s 13 of the Act, it would have to be an order under s 13(2)(b). In other words, I would have to give directions which would result in a trial of the issue as to whether or not the judgment debtor holds the interest in the property on trust. It is difficult to see how that question could be resolved without all those steps being taken which are part of the trial process - pleadings, discovery and the like. It might well take two years or longer to resolve these issues. It would involve all parties in considerable expense. In my view, such a process is not warranted given the time that has passed.
Furthermore, there is the question as to the value of the interest the judgment debtor has in the property if it were to be shown that he held the interest in his own right. The property available for execution is a one quarter interest in real estate. That interest must be of limited value. What the value might be is indeterminate and really could only be known once an attempt was made to realise the interest. Given the uncertain, but probably limited value of the interest, my view that enforcement should not be permitted is strengthened.
Finally, there is the question of the value of enforcement proceedings to the judgment creditor. It is to be noted that the action is maintained by Mr Peter Reymond Quigley who was appointed receiver and manager of the judgment creditor on 26 July 1990. That is over 18 years ago. There is no indication in the affidavits filed by Mr Quigley as to what matters remain outstanding in this administration. One might hope that they would not be numerous. But to make an order which would, apart from anything else prolong this administration beyond 20 years is, in my view, of no utility to anyone. That is a further reason for exercising my discretion so as to refuse leave to enforce this judgment.
I would dismiss the judgment creditor's application. I will hear the parties as to costs.