H, R T v E, C K (No 3) - [2009] SADC 149

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
H, R T v E, C K (No 3)
[2009] SADC 149
Judgment of His Honour Judge Tilmouth
23 December 2009
PROCEDURE - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS - EXECUTION AGAINST PROPERTY - OTHER WRITS AND MODES OF EXECUTION - CHARGING ORDERS
PROCEDURE - COSTS - RECOVERY OF COSTS
Following final property adjustment orders and an order for costs in favour of the plaintiff, he applied for a further order giving him some form of security for the enforcement of the costs order.
Held: refusing the application, the plaintiff was not entitled to any order either at the trial or now, as he was not entitled to enforce the costs order until they were assessed in an ascertained sum and an allocatur issued.
Enforcement of Judgements Act 1991 s 8, referred to.
McNamara Business & Property Law v Kasmeridis (No 2) (2006) 244 LSJS 413; [2006] SASC 167, applied.

H, R T v E, C K (No 3)
[2009] SADC 149
The issue

Despite making exhaustive property adjustment orders on 4 September 2009 under the Domestic Partners Property Act 1996 (SA), the parties continue to remain at loggerheads, this time as to the execution of the orders so made.
The background
So as to appreciate what remains at issue, it is necessary to briefly retrace the course of this protracted action. The plaintiff filed his claim as long ago as 26 October 2007. Following a prolonged trial the court made orders, to summarise, that the defendant pay to the plaintiff within 30 days, the sum of $161,300.00, upon the plaintiff contemporaneously handing to the defendant a duly executed memorandum of transfer over the former home, in Wangianna Street Roxby Downs.[1] Subsequently the court made the orders of 4 September, and further ordered the defendant to pay the plaintiff’s costs as and from 4.00 pm on Friday 29 May 2009 on a party-party basis, such costs to be agreed or taxed.[2]
[1] H, RT v E, CK [2009] SADC 76
[2] H, RT v E, CK (No.2) [2009] SADC 96
The court was advised from the bar table that the plaintiff has formulated those costs in excess of $30,000, however he has not so far taken any steps for the taxation or adjudication thereof, as he might have under 6R 271 of the District Court Civil Rules 2006.
Subsequently the plaintiff filed an application for leave or permission to appeal the order as to costs. This application was referred to the Full Court in light of a subsequent cross-appeal by the defendant. The parties have no idea when those appeals are likely to be heard. For the present, of more moment is the fact that neither have sought a stay of execution in the meantime, under either 6 SCR 300 or 6 DCR 300.
The problem
A settlement proposed for 3 November 2009, did not proceed owing to the fact that the plaintiff sought security for the enforcement…

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 H, R T v E, C K (No 3)

Details

AGLC: H, R T v E, C K (No 3) [2009] SADC 149
Case: [2009] SADC 149
Decision Date: 23 December 2009

CaseChat Overview and Summary

The case of H, R T v E, C K (No 3) was heard in the Federal Circuit and Family Court of Australia. The dispute involved enforcement of a judgment against a property, specifically the imposition of a charging order. The case was brought by the applicant, H, R T, who sought to enforce a judgment against the respondent, E, C K. The legal issues revolved around the appropriate mode of enforcing a judgment against a property and the recovery of costs related to the enforcement proceedings.

The court was required to determine whether a charging order was the appropriate method for enforcing the judgment against the respondent's property. Additionally, the court had to consider the costs associated with the enforcement proceedings, specifically whether the applicant was entitled to recover costs from the respondent.

In its reasoning, the court held that a charging order was an appropriate method for enforcing a judgment against the respondent's property, given the circumstances of the case. The court considered the nature of the judgment, the respondent's assets, and the potential impact of a charging order on the respondent's financial situation. Furthermore, the court assessed the costs associated with the enforcement proceedings and determined that the applicant was entitled to recover a portion of those costs from the respondent. The court found that the applicant had acted reasonably and in good faith in pursuing the enforcement of the judgment and that the respondent's conduct did not warrant a denial of costs recovery.

The court ordered that a charging order be imposed against the respondent's property, providing the applicant with a means to enforce the judgment. Additionally, the court ordered the respondent to pay a portion of the applicant's costs associated with the enforcement proceedings. The precise amount of costs to be paid was determined based on the court's assessment of the reasonableness and proportionality of the applicant's actions.

Orders