Impedovo v Nolan (No 3)
[2017] ACTSC 232
•20 December 2016
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 |
Parties: | Antonio Impedovo (First Enforcement Creditor) Eva Barbara Impedovo (Second Enforcement Creditor) Jonathon Peter Nolan (First Enforcement Debtor) Mary Maria Gabriel Vidovic (Second Enforcement Debtor) |
| Solicitors Trinity Law (Enforcement Creditors) Unrepresented (Enforcement Debtors) | |
File Number: | SC 471 of 2014 |
REFSHAUGE J:
An important part of the civil work of the courts is to determine the rights of parties and this often results in the determination of who amongst the parties owes another party money and how much.
While that determination is important, it is also important for the court system to provide a mechanism whereby effect can be given to any such decision, for without that, the decision itself will often be hollow.
There are various means of enforcing court decisions. A substantial part of that is provided for in the enforcement provisions of court procedure. For this Court, that is largely to be found in Div 2.18 of the Court Procedures Rules 2006 (ACT).
Background
It appears that, in 2014, the parties to these proceedings made a Deed which was intended to resolve a dispute over the failure of the enforcement debtors to complete the purchase of certain residential property in Adelaide.
Payments to be made by the enforcement debtors as contemplated under the Deed were not made. On 23 September 2014, the Magistrates Court of South Australia made a money order against the enforcement debtors in favour of the enforcement creditors for $122 991.03 and, on 21 October 2014, that order was registered in this Court: Impedovo v Nolan [2016] ACTSC 386 at [1]-[4]. A money order, in this Court, is simply an order of a court or tribunal for payment to a person (but not into court) of an amount of money: r 2000 of the Court Procedures Rules.
In proceedings for the determination of the rights of parties in civil proceedings, those parties are, in this Court, and in many courts in Australia, with the exception of the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia, usually known as the plaintiff (the party claiming relief) and defendant (the party against whom the relief is sought or who is otherwise responding to the plaintiff’s claim).
Sometimes, a defendant may counterclaim and so claim relief against a plaintiff. In doing so the defendant remains, in this Court, as the defendant and the plaintiff as the plaintiff. Colloquially, but not recognised by the Court Procedures Rules, a defendant who counterclaims is sometimes known as the counterclaimant and the plaintiff known as the defendant to the counterclaim. In such a circumstance, a money order could be made in favour of a defendant who issues a counterclaim.
Where another party is joined to the proceedings by a defendant, that party is known as a third party (or, if joined by a third party, a fourth party and so on). A money order may be made against a third party.
As I explained in The Owners of Units Plan No 932 v Marhaba [2017] ACTSC 13 at [11], once a money order is made, the party, whether plaintiff or defendant (as counterclaimant) who is entitled to the benefit of the money order is called, for the purposes of the proceedings, the enforcement creditor and the party, whether plaintiff (as defendant to a counterclaim), defendant or third party, is called the enforcement debtor. See r 2000 of the Court Procedures Rules.
An order for costs is a money order (r 2000 of the Court Procedures Rules) and such an order may be made in favour of or against any party, who will then become the enforcement creditor or the enforcement debtor as the case may be. The descriptions of the parties will change at this point, but the order in which the names appear in the title to the proceedings will not change. Thus, in this case, as Antonio Impedovo and Barbara Impedovo are entitled to the benefit of the money order, they are the enforcement creditors and Jonathon Peter Nolan and Mary Maria Gabriel Vidovic, as the parties against whom the money order was made, are the enforcement debtors.
Since registration of the South Australian judgment, there have been a number of applications, hearings and enforcement actions taken in relation to the money order. See Impedovo v Nolan at [7]-[21], Impedovo v Nolan (No 2) [2017] ACTSC 146 at [10]-[16].
A seizure and sale order under Div 2.18.5 of the Court Procedures Rules was made on 15 December 2014. I have briefly described the effect of such an order in The Owners of Units Plan No 932 v Marhaba at [14]-[19].
In summary, a seizure and sale order is an order for the seizure of property of an enforcement debtor and sale to provide funds to meet the debt due to the enforcement creditor made, by the Court, in respect of a money order of the Court or of another court or a tribunal but registered with the Court for enforcement. That is to say, the money order is an enforceable order as defined in r 2000 of the Court Procedures Rules, for which a seizure and sale order can be made.
Under r 6250(2)(j) of the Court Procedures Rules, the Registrar has power to make such an order on application by the enforcement creditor.
A Deputy Registrar, exercising that power under s 47(2) of the Supreme Court Act 1933 (ACT), made the seizure and sale order.
Rule 2052 of the Court Procedures Rules provides that a seizure and sale order remains in force for one year after the day it is made, unless stated to end earlier. It may, however, be renewed for periods of no longer than one year, if made before the period ends.
On 8 December 2015, the seizure and sale order was extended to 14 December 2016 by a Deputy Registrar. On 3 November 2016, Penfold J extended it until 14 December 2017.
On 20 December 2016, I made certain orders under r 2219 of the Court Procedures Rules. I said that I would give reasons later. These are those reasons.
The Application
The application for the orders I made on 20 December 2016 was made by the Sheriff, appointed under s 46(2) of the Supreme Court Act. The functions of the Sheriff are generally set out in s 50 of that Act but, in the present context, the Sheriff is, under r 2000 of the Court Procedures Rules, an enforcement officer with duties under the enforcement provision of those rules.
The application was made under r 2219 of the Court Procedures Rules. That rule is as follows:
2219 Seizure and sale order – power of entry for auction of land
(1) If land is to be sold by public auction, the court may, on application by an enforcement officer, make an order –
(a) authorising entry onto the land by the enforcement officer (including entry by force if necessary) for the purpose of showing the land to prospective purchasers; and
(b) authorising entry onto the land by prospective purchasers in the presence of the enforcement officer.
(2) The order may also authorise the enforcement officer to do either or both of the following:
(a) secure entry onto the land (including by breaking or replacing locks, bars and other devices restricting entry, if necessary);
(b) take the steps necessary to prevent people from entering the land.
(3) Part 6.2 (Applications in proceedings) does not apply to an application under this rule.
(4) An application under this rule need not be served on anyone unless the court otherwise orders on its own initiative.
(5) Unless the court otherwise orders on its own initiative, an application under this rule must be dealt with without a hearing and in the absence of the parties.
(6) This rule does not affect any other power of the court to make orders.
(7) In this rule:
land includes premises on land.
For the reasons I explained in The Owners of Units Plan No 932 v Marhaba at [43], it was proper that the an application be made by Application in Proceeding. It was.
This is an application that would previously, until the distinction between open court and chambers was abolished by s 21 of the Supreme Court Act, have been heard in chambers: The Owners of Units Plan No 932 v Marhaba at [37]-[39]. As I there observed at [40], however, a proper reading of the rule shows that such an application would ordinarily be dealt with by a judge in his or her chambers informally and “on the papers”.
I set out in The Owners of Units Plan No 932 v Marhaba at [42], the information required for a proper consideration of the application. I have that information. It is as follows.
The seizure and sale order was made by the Court on 15 December 2014 and to end on 14 December 2017, having been extended under r 2222 of the Court Procedures Rules beyond the usual 12 months provided for in r 2052.
I had affidavits of service of the seizure and sale order on the enforcement debtors on 23 November 2016 as required under r 2015 of the Court Procedures Rules. The documents required or appropriately to be served under rr 2204, 2206 and 2210, were also served. In my view, this gave the enforcement debtors reasonable notice and a reasonable opportunity to seek legal or financial advice or both.
While the enforcement debtors had made many applications, including from
time-to-time for a stay of enforcement and for instalment orders and other miscellaneous applications, no specific application was made following the service of the seizure and sale order on this occasion. Various offers to pay sums towards the judgment were made. One amount of $5000 was paid on 19 December 2016. The first enforcement debtor accepted that a part payment could not affect the entitlement of the enforcement creditors to continue to seek enforcement for the purpose of recovering the whole of the balance of the judgment debt.
The making of an instalment order will, while it is in force, prevent any other enforcement proceedings being taken: r 2159 of the Court Procedures Rules. Similarly, the payment of the whole of the judgment debt and costs will bring the judgment to an end (Tebbutt v Holt (1844) 1 Car & K 280 at 289; 174 ER 811 at 816; Gregory v Cotterell (1855) 25 LJQB 33; 119 ER 593; Clissold v Cratchley [1910] 2 KB 244 at 250) and it is then improper to issue enforcement action: Cubitt v Gamble (1919) 35 TLR 223. The enforcement officer must not then proceed with any sale: R v Bird (1679) 2 Show KB 87; 89 ER 811. Indeed, the purported enforcement of such a judgment will render the enforcement officer and, in appropriate circumstances, the enforcement creditor, liable to the enforcement debtor, for example, for trespass: Moore v Lambeth County Court Registrar (No 2) [1970] 1 QB 560.
The enforcement officer can accept payment after the issue of the seizure and sale order: Taylor v Baker (1677) Freem KB 453; 89 ER 338. The enforcement officer is then contractually bound to pay it to the enforcement creditor: Woods v Finnis (1852) 7 Exch 363 at 370; 155 ER 988 at 991.
Part payment, however, does not prevent the enforcement of the judgment: De Medina v Grove (1847) 10 QB 172 at 176-7; 116 ER 67 at 69. If, however, there is excessive seizure (Gawler v Chaplin (1848) 2 Exch 503 at 506-7; 154 ER 590 at 592) on the enforcement of the whole judgment maliciously and without cause (Scheibel v Fairbairn (1799) 1 Bos & Pul 388; 126 ER 968), the enforcement officer and the enforcement creditor would be exposed to a claim for trespass and damages.
The payments made in this case, however, would not fall into that category as the land was properly seized, there being no goods of a sufficient value to seize and sell to meet the balance of the judgment debt due.
Despite the many applications to which I have referred, there has been no permanent stay and such orders staying the enforcement of the judgment have been temporary and by the date of my order had expired. Instalment orders have been made and discharged for breach under r 2162 of the Court Procedures Rules and none are current.
The judgment debt is for a substantial sum and, as noted above (at [30]), the personal property available would not be sufficient to meet the balance of the judgment debt. I note, further, that the enforcement debtor has been ordered to pay further costs and that a further seizure and sale order has been issued for $66 532.63 (though, in error, expressed to be for $66 388.451 [sic] which may need to be addressed, for example, under r 6906 of the Court Procedures Rules, before it is executed).
As I noted in The Owners of Units Plan No 932 v Marhaba at [44], the enforcement officer has a duty to sell at a fair and reasonable price as explained in Anderson v Liddell (1968) 117 CLR 36 at 46. See also Zhou v Kousal & Ors [2012] VSC 187 at [9]-[11].
This, as I there noted, requires reasonable access for the enforcement officer to the property so as to provide an opportunity for prospective purchasers to inspect the property and to make the likelihood of obtaining a reasonably fair price the greater. This is standard practice within the real estate industry.
This is a good reason for permitting the entry to the seized premises that is, with the authority of the Court, to be allowed under the rule.
I was also asked to authorise entry on to the property, the subject of the seizure and sale order, so that the locks could be changed because the enforcement debtors have the only keys and have not surrendered them. Again, that is appropriate and I made such an order.
There are two final matters. The seizure and sale order describes the subject property by reference to a Deposited Plan, even though that is not necessary: The Owners of Units Plan No 932 v Marhaba at [32]. In the future, it is only necessary to refer to the Units Plan as well as the Block, Section and Division and helpful to add the street address. In this case, I did not have details of the Units Plan so I did, in the orders, refer to the Deposited Plan, though that would not identify the Units Plan and may risk the enforcement officer seizing the incorrect property. On inquiry, I do not consider the risk great in this case. Attention should, in the future, be paid to such a matter.
Finally, the Application in Proceeding was entitled as if the Sheriff, as enforcement officer, was a party. That is not so; the title to the proceedings remains unchanged from the title given when the judgment of the Magistrates Court of South Australia was registered in this Court, though the description will have changed from plaintiffs to enforcement creditors and defendants to enforcement debtors on court documents thereafter. The applications and steps after judgment in connection with enforcement are made in the original proceedings (r 2002 of the Court Procedures Rules) and the title will otherwise remain the same.
These are the reasons for the orders I made.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 18 August 2017 |
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