Grounded Construction Group Pty Ltd v Easy Stay Mining Accommodation Pty Ltd [No 2] - [2020] WADC 44

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   GROUNDED CONSTRUCTION GROUP PTY LTD -v- EASY STAY MINING ACCOMMODATION PTY LTD [No 2] [2020] WADC 44
CORAM:   GOETZE DCJ
HEARD:   17 & 28 FEBRUARY 2020
DELIVERED          :   3 APRIL 2020
FILE NO/S:   CIVO 152 of 2017
BETWEEN:   GROUNDED CONSTRUCTION GROUP PTY LTD
Judgment Creditor
AND
EASY STAY MINING ACCOMMODATION PTY LTD
Judgment Debtor
MT MORGANS WA MINING PTY LTD
Third Person
OCS INTERNATIONAL PTY LTD
OCS International Pty Ltd

FILE NO/S: CIVO 153 of 2017
BETWEEN: GROUNDED CONSTRUCTION GROUP PTY LTD
Judgment Creditor
AND
EASY STAY MINING ACCOMMODATION PTY LTD
Judgment Debtor
MT MORGANS WA MINING PTY LTD
Third Person
OCS INTERNATIONAL PTY LTD
OCS International Pty Ltd

FILE NO/S: CIVO 154 of 2017
BETWEEN: GROUNDED CONSTRUCTION GROUP PTY LTD
Judgment Creditor
AND
EASY STAY MINING ACCOMMODATION PTY LTD
Judgment Debtor
MOUNT MORGAN WA MINING PTY LTD
Third Person
OCS INTERNATIONAL PTY LTD
OCS International Pty Ltd

FILE NO/S: CIVO 155 of 2017
BETWEEN: GROUNDED CONSTRUCTION GROUP PTY LTD
Judgment Creditor
AND
EASY STAY MINING ACCOMMODATION PTY LTD
Judgment Debtor
MT MORGANS WA MINING PTY LTD
Third Person
OCS INTERNATIONAL PTY LTD
OCS International Pty Ltd

FILE NO/S: CIVO 183 of 2017
BETWEEN: GROUNDED CONSTRUCTION GROUP PTY LTD
Judgment Creditor
AND
EASY STAY MINING ACCOMMODATION PTY LTD
Judgment Debtor
MT MORGANS WA MINING PTY LTD
Third Person
OCS INTERNATIONAL PTY LTD
OCS International Pty Ltd

Catchwords:

Registration as judgments in the District Court of five determinations after adjudications under the Construction Contracts Act - Debt appropriation orders issuing under the Civil Judgments Enforcement Act - Order for payment in full of available debts to a trust bank account pending further order - Later compromise of judgment sums requiring reduction of quantum of judgment debts and debt appropriation orders - Irregularity of orders - Setting aside of orders - Application for payment to judgment creditor of funds standing in court to the credit of a judgment debtor - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA)
Construction Contracts Act 2004 (WA)
Personal Property Securities Act 2009 (Cth)

Result:

Order for payment of monies in court to Third Person

Representation:

CIVO 152 of 2017

Counsel:

Judgment Creditor	:	No appearance
Judgment Debtor	:	Mr J Doyle
Third Person	:	Mr T Palmer
OCS International Pty Ltd	:	Mr J Doyle

Solicitors:

Judgment Creditor	:	Not applicable
Judgment Debtor	:	Doyles Construction Lawyers
Third Person	:	HWL Ebsworth Lawyers
OCS International Pty Ltd	:	Doyles Construction Lawyers

CIVO 153 of 2017

Counsel:

Judgment Creditor	:	No appearance
Judgment Debtor	:	Mr J Doyle
Third Person	:	Mr T Palmer
OCS International Pty Ltd	:	Mr J Doyle

Solicitors:

Judgment Creditor	:	Not applicable
Judgment Debtor	:	Doyles Construction Lawyers
Third Person	:	HWL Ebsworth Lawyers
OCS International Pty Ltd	:	Doyles Construction Lawyers

CIVO 154 of 2017

Counsel:

Judgment Creditor	:	No appearance
Judgment Debtor	:	Mr J Doyle
Third Person	:	Mr T Palmer
OCS International Pty Ltd	:	Mr J Doyle

Solicitors:

Judgment Creditor	:	Not applicable
Judgment Debtor	:	Doyles Construction Lawyers
Third Person	:	HWL Ebsworth Lawyers
OCS International Pty Ltd	:	Doyles Construction Lawyers

CIVO 155 of 2017

Counsel:

Judgment Creditor	:	No appearance
Judgment Debtor	:	Mr J Doyle
Third Person	:	Mr T Palmer
OCS International Pty Ltd	:	Mr J Doyle

Solicitors:

Judgment Creditor	:	Not applicable
Judgment Debtor	:	Doyles Construction Lawyers
Third Person	:	HWL Ebsworth Lawyers
OCS International Pty Ltd	:	Doyles Construction Lawyers

CIVO 183 of 2017

Counsel:

Judgment Creditor	:	No appearance
Judgment Debtor	:	Mr J Doyle
Third Person	:	Mr T Palmer
OCS International Pty Ltd	:	Mr J Doyle

Solicitors:

Judgment Creditor	:	Not applicable
Judgment Debtor	:	Doyles Construction Lawyers
Third Person	:	HWL Ebsworth Lawyers
OCS International Pty Ltd	:	Doyles Construction Lawyers

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

Auswide Heavy Haulage Pty Ltd v Hollow Point Logistics Pty Ltd [2015] WADC 98
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 6] [2014] WASC 105
Grounded Construction Group Pty Ltd v Easy Stay Mining Accommodation Pty Ltd [2019] WADC 153
Murcia & Associates (A firm) v Grey & Ors (2001) 25 WAR 209; [2001] WASCA 240

GOETZE DCJ:

Mt Morgans Mining WA Pty Ltd has applied for an order under s 58 of the Civil Judgments Enforcement Act 2004 (WA) that money paid into this court, and purportedly standing to the credit of Easy Stay Mining Accommodation Pty Ltd, be paid to Mt Morgans.
Before proceeding further, it is necessary to examine the background leading up to this application.

Background

There have been five adjudications, each leading to a determination under the Construction Contracts Act 2004 (WA), between Grounded Construction Group Pty Ltd and Easy Stay Mining Accommodation Pty Ltd.
Grounded was the successful party in each determination. Easy Stay then sought judicial review of the five determinations in the Supreme Court.
In October and November 2017, the five determinations were registered as judgments in this court under s 43(2) of the Construction Contracts Act. This created the relationship of judgment creditor and judgment debtor between Grounded and Easy Stay respectively.
OCS International Pty Ltd is not a party to the judgments. However, it had previously taken a charge over the assets of Easy Stay. This charge was registered under the Personal Property Securities Act 2009 (Cth) prior to the registration of the abovementioned judgments. For present purposes it can be accepted, without deciding, that the charge takes priority over the later judgments obtained by Grounded against Easy Stay and that there is a solicitor's lien held by Easy Stay/OCS's solicitors, also with priority, over any funds to which Easy Stay/OCS might be entitled.
Given that Mt Morgans was indebted to Easy Stay, Grounded was able to apply for, and obtain, a debt appropriation order against Mt Morgans as a third person on each of the judgments. In this way, Mt Morgans was ordered to pay an available debt to Grounded: Civil Judgments Enforcement Act s 45, s 46(1) and s 49(1).
Section 54(1) of the Civil Judgments Enforcement Act, relevantly, provides as follows:
(1)A third person who is served with a debt appropriation order may object to the order on one or more of these grounds -
(a)that a person other than the judgment debtor and the judgment creditor owns or has a claim on or interest in the appropriated debt;
(b)that the appropriated debt does not and will not exist;
(c)that the third person has an unsatisfied monetary judgment against the judgment creditor or the judgment debtor.
It can be seen that s 54(1) only enables a third person to object to a debt appropriation order. A third person is defined in s 45 as meaning the person to whom the debt appropriation order is addressed. The section does not provide any statutory right either to Easy Stay or OCS to object to the appropriated debts.
Nonetheless, OCS objected to the debt appropriation orders on grounds that:
(a)OCS had a claim or interest in the appropriated debts by reason of its prior registered charge; and
(b)the appropriated debts do not and will not exist.
However, this was expressed with reference to the judgment debts as to which Easy Stay sought judicial review of the determinations in the Supreme Court referred to above at [4].
Easy Stay is said to have also objected in the same terms as OCS. However, a copy of its objection cannot be found on the court's electronic file. I will proceed on the basis that Easy Stay did lodge an objection.
Subsequently however, Mt Morgans did object, within time, to the debt appropriation orders. It was able to so object as a third person relying on s 54(1)(a) and s 54(1)(b) of the Act. Mt Morgans' objection repeated the objections of OCS, adding that Easy Stay and OCS:
claim that the appropriated debt will no longer exist as the result of the outcome of an application … to the Supreme Court for judicial review of the adjudication determinations …
Easy Stay and OCS then applied for orders to suspend enforcement of all or part of the judgment debts.
The application for the suspension orders was open to Easy Stay under the provisions of s 15 of the Civil Judgments Enforcement Act, which provides that the suspension order can be made for an indefinite period. However, there is no legislative provision enabling OCS to apply for suspension.
On 31 October 2017, the principal registrar made interim orders suspending four of the judgments and debt appropriation orders until further order.
Further, on 31 October 2017, it was also ordered that, by 2 November 2017, Mt Morgans pay the total from four appropriated debts into a bank suspense account of its choosing to be held in trust until further order. These orders were complied with by Mt Morgans.
Then, on 17 November 2017, the orders referred to above at [15] and [16] were extended until further order. Such orders did not include CIVO 183 of 2017 but, on 13 February 2018, the judgment and debt appropriation order therein were also suspended until further order by consent of all parties, and further, the judgment sum in that matter was ordered to be paid into the abovementioned trust account. Again, this order was complied with.
Under s 16(2) of the Civil Judgments Enforcement Act, enforcement of the judgments was suspended while such suspension orders were operative and they operated as a stay of execution: s 16(3). These orders still remain in force. They have never been set aside or discharged.
By s 55 of the Civil Judgments Enforcement Act, the judgment creditor, Grounded, may have allowed Mt Morgans' objections within seven days. However, they were not allowed and so, s 55(2) applied as follows:
(2)If the judgment creditor does not allow the objection within 7 days after the date of it, any of -
(a)the third person; or
(b)the judgment debtor; or
(c)any other person whom the third person claims owns or has a claim on or interest in the appropriated debt,
may apply to the court for an order that the objection be allowed.
It follows that each of Mt Morgans as the third person, Easy Stay as the judgment debtor and OCS as any other person whom Mt Morgans claimed owns or has a claim on or an interest in the appropriated debts, could apply to the court for orders that Mt Morgans' objections be allowed. The Civil Judgments Enforcement Act does not provide any time limit within which those applications can be made.

The various applications

On 15 and 22 November 2017, Easy Stay and OCS respectively applied for determination of Mt Morgans' objections to the debt appropriation notices. Mt Morgans did not make such an application.
Save for certain hearings being listed and vacated, nothing further appears to have happened in any of these matters until July 2019.
On 17 July 2019, the Supreme Court judicial review proceedings brought by Easy Stay against Grounded were settled. This settlement was consented to by OCS. In these five actions, minutes of consent orders were signed by solicitors acting for each of those parties. The minutes provided for payment of one half of the total judgment sums, held in the Mt Morgans trust account, plus all interest on that total amount, to be paid to Grounded and the remaining one half of the total sum to be paid to Easy Stay. Mt Morgans did not agree.
On 2 July 2019, Easy Stay and OCS sought to remove Mt Morgans as trustee of the trust fund.
Further, on 22 August 2019, Mt Morgans, being the person within the meaning of s 103(1)(b) to whom the original debt appropriation orders were addressed, applied under s 103(2) of the Civil Judgments Enforcement Act for orders that the debt appropriation orders, the judgments and actions be dismissed. Mt Morgans also sought to dismiss the orders that it pay money into a trust account.
The applications referred to above at [21], [24] and [25] were heard on 6 September 2019, together with a proposal to give effect to the minute of consent orders referred to above at [23].

The deputy registrar's reasoning

Following the hearing on 6 September 2019, written reasons for decision were delivered by the learned deputy registrar in Grounded Construction Group Pty Ltd v Easy Stay Mining Accommodation Pty Ltd [2019] WADC 153.
In dealing with the applications under s 55 by OCS and Easy Stay to determine Mt Morgans' objections, the learned deputy registrar rejected:
(1)the application of OCS as being out of time; and
(2)the application of Easy Stay because to have allowed it would result in the interest of OCS being promoted ahead of Grounded's judgment.
However, there is no statutory time limit as to when such an application can be brought and there is no reason why a prior registered security holder cannot take precedence over a later judgment creditor.
In dealing with the objections, the learned deputy registrar said:
25The issues that I have canvassed in addressing the application of the judgment debtor were not raised by any party at the hearing on 6 September 2019, be that as it may I am satisfied that it is clear that the application of the judgment debtor of 15 November 2017 does not convey a case within the scope of s 55 of the Act.
26The proposal put on 6 September 2019 was on the basis that distribution of the fund would dispense with the proceeding. The reality is that no proceeding has been commenced.
The learned deputy registrar went on to find that by paying money into the trust fund, Mt Morgans had divested itself of its beneficial interest in the available debt. He said:
28By 31 October 2017 the third person had in part complied with its obligation under the debt appropriation order and I am satisfied that it had then conveyed both its intention to comply with the balance of its obligations and its willingness to undertake the role of trustee of the fund. The obligations of the third person to the judgment debtor suspended under the order of 31 October 2017 have been overtaken by the third person having established and funded the account of which it now stands as trustee. Thereby it has been divested of its beneficial interest in the appropriated debt. It awaits an order for payment of those funds to a beneficiary. In effect the third person has been relieved of any outstanding obligation under the debt appropriation order and its role as third person under the debt appropriation order has ceased. The remaining role of the third person is as trustee.
However, the role of Mt Morgans as third person under the debt appropriation orders did not cease to have effect upon creation of the trust fund. That is because the role of the third person in the debt appropriation order could not cease until the debt appropriation order itself ceased to have effect. Further, the judgment debts and appropriation orders had been stayed until further order and they remained stayed and the stay orders still have not been lifted. Cessation of the debt appropriation orders could only occur on the happening of an event listed in s 51(6) of the Act which provides as follows:
(6)A debt appropriation order ceases to have effect -
(a)when the third person is notified of the fact by the court or the judgment creditor; or
(b)when the third person is notified that an objection has been allowed under section 55; or
(c)when the judgment debt is satisfied; or
(d)when an order cancelling it has effect under section 103,
whichever happens first.
The learned deputy registrar went on to find that:
44… the trust was created by the court to await the outcome of any recourse to the statutory process of objection.
On the learned deputy registrar's reasoning, the objections failed and Mt Morgans had divested itself of the beneficial interest in the trust fund, such that he ordered the trust fund be paid, in full, to Grounded.
Easy Stay and OCS appealed this decision. The appeal notice sought:
payment out of the funds held in trust.
Before proceeding further, it is necessary to note here that, on 19 July 2019, Mt Morgans obtained a separate judgment against Easy Stay in the Supreme Court in the sum of $1,181,704.94 following another adjudication and determination under the Construction Contracts Act.
The learned deputy registrar's reasons at [30] - [45] for dismissing Mt Morgans' application were, in summary, that:
1.he did not accept that the judgment debt had been extinguished by the settlement between Grounded and Easy Stay/OCS referred to above at [23];
2.the judgment debt in favour of Mt Morgans against Easy Stay referred to above at [35] was not available to assist Mt Morgans as a ground of objection under s 54(1)(c) ie that it had an unsatisfied monetary judgment against Easy Stay. That ground of objection was too late in that it could not have been made within 7 days of service of the debt appropriation order, which issued on 24 October 2017: s 54(2)(c). Section 103 did not permit Mt Morgans to avoid the constraints of s 54(2)(c);
3.as noted above, Mt Morgans had complied with the requirement for payment of the appropriated debts into a trust account and had thereby divested itself of its beneficial interest in those funds and its role, as a third person under the debt appropriation orders, had ceased. Mt Morgans was then a mere trustee awaiting determination of the objections. If Easy Stay had succeeded with its objection, then the Act permitted a payment to it from the trust money. However, it did not succeed on its objection and neither did OCS on its objection, and therefore, the trust money should be paid to Grounded.
The learned deputy registrar was not correct in this reasoning.
First, only the third person served with the debt appropriation order may object to that order. Only Mt Morgans had that right, although Easy Stay and OCS could apply under s 55(2) to have that objection allowed as outlined above at [8]. Further, the objections permitted by s 54(1)(a) and s 54(1)(b) are both predicated on an appropriated debt; not a judgment debt. Here, although the objections referred to 'appropriated debt', it was the judgment debt with reference to the Supreme Court review proceedings which the objections sought to challenge. There is no statutory power to object to a judgment debt.
Secondly, although the learned deputy registrar was correct in finding that the payment into trust was to secure the interest of a prospective beneficiary or beneficiaries, such payment was until further order thereby securing the interests of all parties, including the third person, as well as the judgment creditor and judgment debtor, whilst the judgment and debt appropriation orders remained suspended and execution was stayed. As noted above at [31], Mt Morgans' obligations under the debt appropriation order had not ceased. Until all matters were resolved, it had an interest in the trust fund.
Thirdly, the learned deputy registrar was wrong to not accept evidence on affidavit that Grounded and Easy Stay had settled the application for judicial review in the Supreme Court on the basis that Grounded would be paid one half of its claim plus interest. It was a matter of common ground between the parties, even if Mt Morgans was not aware of the fine detail of that settlement.

Fourthly, in 2019, when Mt Morgans' application was made under s 103, there were differing factual circumstances from two years earlier when the suspension orders and the orders requiring the payment of funds into the trust account were made. By 2019, the founding judgment debts from 2017 had been reduced by one half and Mt Morgans then had an unsatisfied judgment in the Supreme Court which it sought to enforce.
Although there is no statutory power in s 54(2)(c) to extend the 7 day time limit to object to a debt appropriation order and it was then too late for Mt Morgans to so object under s 54(1)(c) as having an unsatisfied Supreme Court judgment against Easy Stay, it could still apply under s 103(1) to amend or cancel an original order, on the basis of the differing factual circumstances.
Fifthly, the learned deputy registrar found that Mt Morgans could not avoid the time constraints imposed under s 54(2)(c) by proceeding under s 103. This is not correct. That s 54(2)(c) does not preclude intervention by the court under s 103(1) is demonstrated by s 51(6)(d), as set out above at [31], which permits an application at any time for an order to cancel a debt appropriation order. The learned deputy registrar also reasoned that Mt Morgans' application to dismiss the judgments, the debt appropriation orders and the order for payment into court would defeat the purpose of making the orders on 31 October 2017. That too cannot be correct. The purpose of the payment into trust in 2017 was to preserve the available debt being the subject of the debt appropriation order as well as the position of all parties until the objections and the Supreme Court judicial review proceedings were resolved. However, in 2019, the Supreme Court review had resulted in a settlement and Mt Morgans had its own Supreme Court judgment against Easy Stay. The objections were dealt with and disallowed. Then, Mt Morgans' application under s 103 should have been considered on its own merits.
Sixthly, in the circumstances of 2017 with outstanding objections and the Supreme Court review proceedings, the payment by Mt Morgans into the trust account was not by reason of compliance with any debt appropriation orders as found by the learned deputy registrar at [28] of his reasons, but rather, by reason of the court orders made on 31 October 2017 and 13 February 2018. Resolution of the Supreme Court review proceedings and the objections would later determine where the beneficial interests of the trust funds should lie, with Grounded's five judgments being secured by reason of the orders for, and payment into, the trust account of the total of the debt appropriation orders. Once those proceedings and objections had been resolved, it was appropriate to consider Mt Morgans' 2019 application with differing factual circumstances. Its application would not defeat the purpose of the orders made on 31 October 2017.
Easy Stay and OCS did not seek to appeal against [28] of the reasons. Indeed, they relied upon it when the appeal came on for hearing.
Mt Morgans did not appeal at all.

The 'appeal' and the payment to Grounded

The appeal came on for hearing on 10 December 2019. It was common ground at the appeal that Grounded and Easy Stay, with the consent of OCS, had settled their dispute in the Supreme Court review proceedings as outlined above at [23]. However, Mt Morgans was still not aware of the finer details of that settlement.
The settlement required a pragmatic approach be adopted by all concerned to resolve the matter. Issues arising from, and challenges to, the learned deputy registrar's reasoning were not dealt with as might ordinarily be expected upon the hearing of an appeal. Rather, the emphasis was upon seeking to obtain a final solution to the matter following the settlement. The parties ultimately agreed to orders as follows:
1.The money paid into the trust account by Mt Morgans, together with all interest earned thereon, was to be paid into court.
2.One half of the principal sum was then to be paid to Grounded, together with all interest earned on the total principal sum, in accordance with the settlement between Grounded and Easy Stay/OCS.
3.The remaining one half of the principal was to be paid to Easy Stay/OCS via their solicitors trust account, unless Mt Morgans applied to the Supreme Court for, and obtained, an order providing otherwise.
4.There be liberty to apply.
These orders were made to resolve the matter, given the settlement which had been achieved between Grounded and Easy Stay/OCS. Order number 3 also sought to recognize that, by that time as outlined above at [35], Mt Morgans had obtained a judgment in the Supreme Court against Easy Stay upon which Easy Stay was seeking judicial review and the fact of the debt owed by Mt Morgans to Easy Stay, which has not been denied.
The orders referred to above at [48] were made notwithstanding that the stay orders made on 31 October 2017, as extended, have never been lifted. The payment into court and subsequent payment to Grounded were made and now, nothing further is due to Grounded.

The objections

The objection filed by Mt Morgans should have been, and was, determined upon the application of either or both of Easy Stay and OCS. That occurred. The applications were dismissed.
It should be noted that there was an arguable ground of objection, set out above at [10(a)], but not allowed. However, nothing turns on this disallowance for the reasons that:
1.although OCS was able to apply to the court for an order that Mt Morgans' claim concerning it as set out above at [20] be allowed, this claim or interest could not exceed any right or entitlement to the total available debt able to be appropriated by Grounded in these five matters under the Civil Judgments Enforcement Act; and
2.by consenting to the settlement between Easy Stay and Grounded and by consenting to the payment to Grounded from the trust account, OCS elected to waive any claim or interest it had to those funds paid to Grounded under its charge over the assets of Easy Stay. So too, any solicitor's lien over those funds has been waived.
The invalid ground of objection to a judgment debt identified above at [10(b)] should have been readily rejected because this objection did not concern the debt appropriation order at all, as set out above at [38].

Consequences of the settlement

First, Mt Morgans has never denied that it owed an available debt, within the meaning of s 46(1) of the Act, to Easy Stay.
The Civil Judgments Enforcement Act provides:
… for the enforcement of judgments given in the civil jurisdiction of courts and for related matters.
This Act provides for the enforcement of Grounded's judgments against Easy Stay by appropriating the available debt due from Mt Morgans to Easy Stay: s 46(1). Grounded applied to the court and the court then issued debt appropriation orders. The only purpose of those debt appropriation orders was to recover the judgment debts: s 49(1).
The Civil Judgments Enforcement Act limited Grounded's recovery under the debt appropriation orders to only so much as was required to satisfy its judgment debts. The Act is not concerned with the recovery of an available debt being greater than a judgment debt or the payment of a debt to a judgment debtor.
The orders made on 31 October 2017 were for the suspension of the judgments and debt appropriation orders until further order. These orders then had the effect of staying the execution of the judgments and appropriation orders and were based on the need to preserve the appropriated debts by payment thereof into trust pending resolution of both the Supreme Court judicial review proceedings between Easy Stay and Grounded and any application to determine objections to the debt appropriation orders.
The suspension orders did not come into effect until after payment by Mt Morgans of the total judgment debts into the trust account.
Once the judgment debts were compromised following settlement between Grounded and Easy Stay/OCS, the quantum of those judgment debts should have been amended to reflect that settlement. This would then have a flow-on effect requiring amendment to the debt appropriation orders.
It would be wrong in principle to distribute to Easy Stay any surplus from the trust monies leftover after Grounded was paid the compromised debt due to it, when that surplus arises from a compromise and reduction in judgment debts after the payment into trust pursuant to a court order suspending execution and pending further order. Further, any right OCS had to recover the surplus under its security document and any right based upon the solicitor's lien were both dependent upon Easy Stay being entitled to such surplus.
Section 103 of the Civil Judgments Enforcement Act, relevantly, provides as follows:
(1)If a court makes an order under this Act (the original order), a person -
(a)who obtained the original order; or
(b)to whom the original order is addressed; or
(c)who is authorised to do anything under the original order; or
(d)who is affected by, or whose property is affected by, the original order,
may apply to the court for an order that amends or cancels the original order.
Grounded is, within the meaning of s 103(1)(a), a person who obtained the five judgments and debt appropriation orders. In the circumstances of the settlement outlined above, it could have applied to amend the judgments and appropriation orders to reflect that settlement. It was not obliged to do so.
Likewise, Easy Stay being, within the meaning of s 103(1)(b), the person to whom the judgment was addressed, could have applied to amend the judgments. Again, it was not obliged to do so.
Further, Mt Morgans being, within the meaning of s 103(1)(b), the person to whom the original debt appropriation orders were addressed, could have applied to amend or cancel the debt appropriation orders. It did apply to cancel those orders and the requirement for the payment into the trust account. Although Mt Morgans, without any statutory right to do so, went further and sought to have the judgments or actions dismissed, that did not preclude the court from simply ordering amendment of the judgments and debt appropriation orders under s 103(1). This application was wrongly dismissed by the learned deputy registrar for the reasons set out above but, by the agreed settlement, the amounts then due under the judgments and the debt notification orders had been reduced by one half. This change was not acted upon.

The need to amend

The judgments and debt appropriation orders have never been amended to reflect the Supreme Court settlement. Even now, the stay order has never been lifted.
Grounded, Easy Stay and OCS seem to have considered that the payment into the trust account by Mt Morgans of the total sum of the judgments as registered was funding available to them, or at least to Easy Stay and OCS, to dispose of as they saw fit.
The settlement between Grounded and Easy Stay/OCS was by agreement between themselves for the payment of an amount to Grounded being one half of the total of the five judgments. Payment of that sum plus interest has now been made by a consent court order, including the consent of Mt Morgans in accordance with the settlement, as outlined above, thereby achieving the legislative purpose of the Act and concluding any further interest held by Grounded in these actions.
This payment was achieved in an irregular fashion in that procedural formalities were not complied with. To regularize the payment to Grounded, the judgment debts and debt appropriation orders should have been amended and the suspension order be lifted. Had that been done, then the irregularity of order 3 above at [48] would have been apparent before that order was made.
Applying the provisions of s 103(1)(b) of the Act, the original judgment sums and debt appropriation orders being for the sums of:
(a)$133,441.60 in CIVO 152/2017;
(b)$91,434.24 in CIVO 153/2017;
(c)$143,041.81 in CIVO 154/2017;
(d)$127,536.99 in CIVO 155/2017; and
(e)$94,185.74 in CIVO 183/2017;
should all be amended by reducing each of the judgment sums by one half to reflect the compromised judgments and the quantum of the debt appropriation orders should likewise be reduced.
The suspension orders should be lifted.
Further, s 105 of the Act provides as follows:
If the court that made an order under Part 4 or 5 or section 101 is satisfied that an irregularity has occurred in connection with the making or carrying out of the order, the court may make any order needed to correct the irregularity including an order -
(a)that sets aside the order or an act done under the order;
(b)that requires the restitution of property or the payment of money, compensation or damages.
Section 105 does not require an application to be made to it, as is required by s 103 and s 104. Rather, s 105 is conditional upon the court's satisfaction of an irregularity having occurred in connection with the making of an order.
In Murcia & Associates (A firm) v Grey & Ors (2001) 25 WAR 209; [2001] WASCA 240 [14] Steytler J observed that if there is no statutory authorisation for the court's order and such order is made, then there is a nullity. Consent does not operate to waive such a nullity or to create jurisdiction. There is a duty on a judge to be satisfied that he or she had jurisdiction to make the order. Wallwork J agreed and it would seem that Pidgeon J also agreed on this point [6].
All of the matters set forth above show that such an irregularity has occurred. In particular the court does not have statutory authority to order payment of money to Easy Stay. The court's authority is limited as set out above at [55] and [56].
The meaning of 'irregularity' was accepted by Simmonds J in Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 6] [2014] WASC 105 at [129] to include:
A breach of rule or principle; an irregular, lawless, or disorderly act. The lack of conformity to rule, law, or principle; deviation from what is usual or normal; abnormality, anomalousness.
The Explanatory Memorandum for the Civil Judgments Enforcement Bill 2003 reads as follows:
Clause 105 Irregular enforcement, courts' powers as to
This clause provides that if the court issues an enforcement order and is satisfied that an irregularity has occurred with either the making of the order or its carrying out, the court can correct the irregularity including setting aside its previous order as well as ordering any necessary restitution of property, payment of money, compensation or damages.
Circumstances could arise such as seizing property at the wrong address, seizing property after the judgment debt has been satisfied or seizing in a manner that constitutes non-compliance with the rules of court or regulations made under the Act. The clause therefore allows the court to address irregularities and is necessary for the good administration of justice.
Relevant from the memorandum is the 'seizing of property after the judgment debt has been satisfied' given that the subject matter for determination here concerns recovery of an available debt in an amount exceeding the judgment debts, as to which, see above at [56].
Order number 3 from 10 December 2019 should be set aside as an irregularity and by substituting an order that the remaining monies paid into this court, and any interest earned thereon, be refunded to Mt Morgans.

The s 58 application

Section 58 of the Act, relevantly, provides as follows:
(1)In order to recover a judgment debt, a judgment creditor may apply to any court in which there is money standing to the credit of the judgment debtor for an order that the money, or so much of it as is sufficient to satisfy the judgment debt, be paid to the judgment creditor.
(2)The court may make such an order.
(3)On the making of an application under subsection (1), the money in court must not be paid to the judgment debtor until the application is finally determined.
The application under s 58 assumes that the monies paid into court stand to the credit of Easy Stay. However, this cannot be assumed for the reasons set out above. The application must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JB
Associate to Judge Goetze
3 APRIL 2020