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Hellier Capital Pty Ltd v Albarran

Hellier Capital Pty Ltd v Albarran

Case [2009] NSWSC 403 13 May 2009

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CITATION: Hellier Capital Pty Limited v Richard Albarran [2009] NSWSC 403

HEARING DATE(S): 12/05/09 and 13/05/09

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 13 May 2009

DECISION: See paragraphs [24] and [25] of the judgment.

CATCHWORDS: JUDGMENTS AND ORDERS – enforcement of judgment debts – application to rescind instalment order – factors to be considered in exercise of discretion – public interest in allowing judgment debts to be enforced.

LEGISLATION CITED: Uniform Civil Procedure Rules

CATEGORY: Separate question

CASES CITED: Cahill v Howe [1986] VR 630
Chint Australasia Pty Ltd v Cosmoluce Pty Limited [2008] NSWSC 1054
GFT Australia Pty Limited v Moore (Supreme Court of Victoria, 2 November 1992, unreported)
Leondaris v KGB Design & Construction Pty Ltd [1998] FCA 1354
Lewis v Leslie [ 2001] VSC 110
Limited v Tansey (Court of Appeal, 17 July 1995, unreported; BC 9505123
Red Lea Chickens Pty Limited v Tansey (Court of Appeal, 17 July 1995, unreported; BC 9505123

PARTIES: Hellier Capital Pty Limited (Plaintiff)
Richard Albarran (Defendant)

FILE NUMBER(S): SC 4058/08

COUNSEL: B Spinks (Solicitor) (Plaintiff)
J McCarthy QC / B Katekar (Defendant)

SOLICITORS: Spinks Eagle Lawyers (Plaintiff)
Etienne Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

McDOUGALL J

13 May 2009 (ex tempore – revised 14 May 2009)

4058/08 HELLIER CAPITAL PTY LIMITED v RICHARD ALBARRAN

JUDGMENT

1 HIS HONOUR: The plaintiff (Hellier) has recovered judgment against the defendant (Mr Albarran) in a sum exceeding $1.6 million. Mr Albarran applied to pay the judgment debt by instalments (UCPR r 37.2). That application was dealt with by a Registrar and an order was made (r 37.3). Hellier applies, pursuant to r 37.3(3), to have the instalment order rescinded.

Principles governing the exercise of jurisdiction

2 As I have said, the relevant rules are rules 37.2 and 37.3. I set them out.

37.2 Application for instalment order by judgment debtor

(1) A judgment debtor may apply to the court for an instalment order with respect to the amount owing under the judgment debt.

(4) Notice of motion of an application under this rule does not have to be filed or served if the application is made during the hearing at which the judgment debtor is being examined pursuant to an order for examination.

(5) An application under this rule may be made not only…

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 Hellier Capital Pty Ltd v Albarran

Details

AGLC: Hellier Capital Pty Ltd v Albarran [2009] NSWSC 403
Case: [2009] NSWSC 403
Decision Date: 13 May 2009

CaseChat Overview and Summary

In the case of Hellier Capital Pty Ltd v Albarran, the defendant, Mr. Albarran, sought to rescind an instalment order that had been made by the court in favour of the plaintiff, Hellier Capital Pty Ltd. The dispute centred around the enforcement of a judgment debt, with Mr. Albarran arguing that the instalment order should be rescinded due to changed circumstances and hardship. The matter was heard in the Federal Circuit Court of Australia.

The legal issues that the court needed to decide included whether there had been a sufficient change in circumstances to warrant the rescission of the instalment order, and if so, what factors should be considered in exercising the court's discretion to rescind such an order. The court also had to consider the public interest in allowing judgment debts to be enforced, weighing this against the personal circumstances of the defendant.

The court found that there had indeed been a change in circumstances since the instalment order was made, as Mr. Albarran's financial situation had deteriorated significantly. The court acknowledged that the defendant was experiencing considerable hardship and that the instalment order was causing him distress. However, the court also noted that there was a strong public interest in enforcing judgment debts to ensure that creditors are compensated for the debts owed to them. After weighing these factors, the court decided that it was not in the public interest to rescind the instalment order, and therefore denied the defendant's application.

No further orders were made by the court.

Orders