Impedovo v Nolan (No 3) - [2017] ACTSC 232

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Impedovo v Nolan (No 3)
Citation:	[2017] ACTSC 232
Hearing Date:	20 December 2016
DecisionDate:	20 December 2016
ReasonsDate:	18 August 2017
Before:	Refshauge J
Decision:	The Court orders that: 1. The Applicant be permitted to move on the Application in Proceeding, dated 20 December 2016, notwithstanding that the title of document does not bear the title of the proceedings. 2. Under rule 2219 of the Court Procedures Rules 2006 (ACT), the Sheriff or other enforcement officer be authorised to enter onto the following lands, namely Unit 23, Block 30, Section 856, Division of Isabella Plains on Deposited Plan 7365, known as Unit 23, 36 Cromwell Circuit Isabella Plains, and also Unit 33 on Unit Plan 1000, being Block 10, Section 84 Griffith in Deposited Plan 8455, known as Unit 33, 47 McMillan Crescent Griffith, for the purpose of showing the properties to prospective purchasers. 3. Under rule 2219 of the Court Procedures Rules 2006 (ACT), the Sheriff or other enforcement officer be authorised to break and replace any locks on the lands described in Order 2 if required for the purpose of entry into the premises of the land under Order 2.
Catchwords:	PROCEDURE – ENFORCEMENT OF ORDERS – Seizure and sale – money order – judgment of a Magistrates Court in another jurisdiction registered in the Supreme Court – service of the enforcement order – in chambers orders – Application in Proceedings was entitled between enforcement officer and the enforcement debtor REAL PROPERTY – SEIZURE AND SALE OF LAND – Failure to pay judgment debt justified a sale of real property – sale must be at a fair and reasonable price – r 2219 of the Court Procedure Rules 2006 (ACT)
Legislation Cited:	Supreme Court Act 1933 (ACT), ss 21, 46(2), 47(2), 50 Court Procedures Rules 2006 (ACT), rr 2000, 2002, 2015, 2052, 2159, 2162, 2204, 2206, 2210, 2219, 2222, 6250(2)(j), 6906, Div 2.18, 2.18.5
Cases Cited:	Anderson v Liddell (1968) 117 CLR 36 Clissold v Cratchley [1910] 2 KB 244 Cubitt v Gamble (1919) 35 TLR 223 De Medina v Grove (1847) 10 QB 172 at 176-7; 116 ER 67 Gawler v Chaplin (1848) 2 Exch 503 at 506-7; 154 ER 590 Gregory v Cotterell (1855) 25 LJQB 33; 119 ER 593 Impedovo v Nolan [2016] ACTSC 386 Impedovo v Nolan (No 2) [2017] ACTSC 146 Moore v Lambeth County Court Registrar (No 2) [1970] 1 QB 560 R v Bird (1679) 2 Show KB 87; 89 ER 811 Scheibel v Fairbairn (1799) 1 Bos & Pul 388; 126 ER 968 Taylor v Baker (1677) Freem KB 453; 89 ER 338 Tebbutt v Holt (1844) 1 Car & K 280 at 289; 174 ER 811 The Owners of Units Plan No 932 v Marhaba [2017] ACTSC 13 Woods v Finnis (1852) 7 Exch 363 at 370; 155 ER 988 Zhou v Kousal & Ors [2012] VSC 187
Parties:	Antonio Impedovo (First Enforcement Creditor) Eva Barbara Impedovo…

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.

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Details

Case: [2017] ACTSC 232
Decision Date: 20 December 2016

CaseChat Overview and Summary

In the case of Impedovo v Nolan (No 3), the applicant sought enforcement of a money order issued by a Magistrates Court in another jurisdiction, which had been registered in the Supreme Court. The primary dispute centred on the validity of the enforcement process, specifically the service of the enforcement order and the subsequent in chambers orders. The applicant argued that the Sheriff or other enforcement officers should be authorised to enter onto the specified properties to show them to prospective purchasers and to break and replace any locks if necessary.

The court was tasked with determining whether the enforcement officer could lawfully enter the properties to facilitate their sale, and if the sale would comply with the requirement that it occur at a fair and reasonable price, as stipulated by rule 2219 of the Court Procedure Rules 2006 (ACT). The court had to consider the legal requirements for enforcing a money order and the conditions under which a sale of real property could be justified.

In addressing these issues, the court found that the applicant had complied with the necessary procedural requirements to move the application in proceedings. The court also concluded that the sale of the properties was justified given the debtor's failure to pay the judgment debt. The court further determined that the sale would be conducted in a manner that ensured it occurred at a fair and reasonable price, as mandated by the relevant rule.

The court ordered that the applicant be permitted to proceed with the application, despite the title discrepancy. Additionally, the Sheriff or other enforcement officers were authorised to enter the specified properties for the purpose of showing them to prospective purchasers and to break and replace any locks if necessary. The sale of the properties was to be conducted in accordance with rule 2219 of the Court Procedure Rules 2006 (ACT).

Orders

Orders of the court

The Court orders that:

1. The Applicant be permitted to move on the Application in Proceeding, dated 20 December 2016, notwithstanding that the title of document does not bear the title of the proceedings.

2. Under rule 2219 of the Court Procedures Rules 2006 (ACT), the Sheriff or other enforcement officer be authorised to enter onto the following lands, namely Unit 23, Block 30, Section 856, Division of Isabella Plains on Deposited Plan 7365, known as Unit 23, 36 Cromwell Circuit Isabella Plains, and also Unit 33 on Unit Plan 1000, being Block 10, Section 84 Griffith in Deposited Plan 8455, known as Unit 33, 47 McMillan Crescent Griffith, for the purpose of showing the properties to prospective purchasers.

3. Under rule 2219 of the Court Procedures Rules 2006 (ACT), the Sheriff or other enforcement officer be authorised to break and replace any locks on the lands described in Order 2 if required for the purpose of entry into the premises of the land under Order 2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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