Impedovo v Nolan (No 2)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Impedovo v Nolan (No 2)

Citation:

[2017] ACTSC 146

Hearing Date(s):

27 April 2017

DecisionDate:

26 June 2017

Before:

Robinson AJ

Decision:

See [36] below.

Catchwords:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Enforcement of debt – seizure and sale order in place in favour of judgment creditors – application by the judgment creditors to amend existing seizure and sale order – whether costs can be added to existing order

PROCEDURE – Supreme Court procedure – Court’s power to amend seizure and sale orders - Court’s inherent power to dispense with the rules of procedure

Legislation Cited:

Court Procedures Rules 2006 (ACT) rr 502(5); 2013; 2051; 2052; 2054 – 2057; 2201; 2213

Cases Cited:

Hunter v Chief Constable of the Western Midlands Police [1982] A.C. 529
Impedovo v Nolan [2016] ACTSC 386

Texts Cited:

Keith Mason, ‘Inherent Jurisdiction of the Court’ (1983) 57 Australian Law Journal 449

Parties:

Antonio Impedovo (First Enforcement Creditor)

Eva Barbara Impedovo (Second Enforcement Creditor)

Jonathan Peter Nolan (First Enforcement Debtor)

Mary Maria Gabriel Vidovic (Second Enforcement Debtor)

Representation:

Counsel

Ms A Irving (Enforcement Creditors)

Self-represented (First Enforcement Debtor);

Mr Nolan, by leave (Second Enforcement Debtor)

Solicitors

Trinity Law (Enforcement Creditors)

Self-represented (Enforcement Debtors)

File Number(s):

SC 471 of 2014

ROBINSON AJ:

Background

1. The first and second enforcement creditors, whom I will refer to as the judgement creditors, obtained a judgement in the sum of $122,991.03 in the South Australian Magistrates Court on 23 September 2014.

1. The judgement was given by consent.

1. The judgement was registered in the ACT Supreme Court on 21 October 2014.

1. A certificate of Enforceable Order and accompanying documents were served upon the first and second enforcement debtors, whom I will refer to as the judgement debtors, on 4 November 2014.

1. There have been many applications brought by the judgement debtors in connection with the attempts to enforce the judgement debt. The judgement creditors, as well, have thought it necessary to file their own applications ancillary to the enforcement of the judgement. As an inevitable consequence, further legal costs have been incurred on each side and interest has, of course, continued to run.

1. Only relatively small, partial payments have been made by the judgment debtors since 2014.

1. The controversies between the parties eventually worked themselves up to the Supreme Court. A chronology of events is set out in the affidavit of Maurice Falcetta sworn 17 February 2017.

1. The decision in Impedovo v Nolan [2016] ACTSC 386 where Penfold J. gave judgement on 23 December 2016 is of significance. The orders made by Her Honour were:

1.The appeal from the registrar is dismissed (noting that the dismissal has the effect of not only confirming the registrar’s refusal to grant an instalment order, but also confirming the registrar’s costs order). 

2.The Court Procedures Rules 2006 (ACT) are dispensed with to the extent necessary to allow me to deal with Mr Nolan’s effective amendment of the orders that he sought on…