Jackson v Chrisp
[2013] WADC 74
•15 MAY 2013
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: JACKSON -v- CHRISP [2013] WADC 74
CORAM: PRINCIPAL REGISTRAR GETHING
HEARD: 24 APRIL 2013
DELIVERED : 15 MAY 2013
FILE NO/S: APP 74 of 2010
MATTER :IN THE MATTER of the District Court Rules and
IN THE MATTER of an Appeal against the Order and Judgment of Her Honour Magistrate Langdon, given the 3rd day of September 2010 in Action No 674 of 2009 in the Magistrates Court of Western Australia held at Armadale
BETWEEN: GEORGE NEVILLE JACKSON
Appellant
AND
DANIEL LEE CHRISP
Respondent
ON APPEAL FROM:
For File No : APP 74 of 2010
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE LANGDON
File No :AR 679 of 2009
Catchwords:
Practice and procedure - Suspension of judgment
Legislation:
Civil Judgments Enforcement Act 2004 (WA) s 15
Magistrates Court Act 2004 (WA) s 36
Result:
Suspension order granted
Representation:
Counsel:
Appellant: In Person
Respondent: Mr Wheatley
Solicitors:
Appellant: Not applicable
Respondent: Mossensons
Case(s) referred to in judgment(s):
Alvaro v Amaral [2013] WASCA 16
Bailey v Marinoff (1971) 125 CLR 529
Cayne v Global Natural Resources plc [1984] 1 All ER 225
DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226
Duckworth v Commonwealth Bank of Australia [2013] WASCA 24
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 81
Jackson v Chrisp [2011] WADC 38
Jackson v Chrisp [2012] WASCA 158
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [2011] WASCA 43
Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd [2010] WASCA 226
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 65
The Commissioner of Taxation for the Commonwealth of Australia v Myer Emporium Limited [1986] HCA 13; (1986) 160 CLR 220
PRINCIPAL REGISTRAR GETHING: George Jackson, the appellant, and Daniel Chrisp, the respondent, are neighbours in Roleystone. For some years now they have been involved in a dispute about the repair of the fence and retaining wall that divides their two properties. The dispute has generated litigation in the Magistrates Court, District Court and Court of Appeal. Mr Jackson reports over 20 court appearances. The dispute seems no closer to resolution than it was when it commenced over four years ago.
This decision concerns an application by Mr Jackson to suspend enforcement of a property (seizure and sale) order (PSSO) obtained by Mr Chrisp to enforce payment of costs taxed in his favour in the District Court. He would like the suspension to last pending the outcome of a review of the decision of Magistrate Langton on 14 October 2009 pursuant to Magistrates Court Act 2004 (WA) (MCA) s 36. This decision was the initial substantive decision under the Dividing Fences Act 1961 (WA) (DFA). The review pursuant to MCA s 36 was commenced by application filed on 22 April 2013.
The background to the dispute between Mr Jackson and Mr Chrisp and its progress through the court system was the subject of detailed consideration by Murphy JA (with whom Pullin JA [1] and Buss JA [2] agreed) in Jackson v Chrisp [2012] WASCA 158 (which I will refer to as 'Jackson (COA)'). I do not need to repeat all the details of the background for the purposes of determining the present application.
The progress of the dispute through the court system included two appeals to the District Court, being the District Court appeals APP 73 of 2010 and 74 of 2010. APP 74 of 2010 related to the decision of Magistrate Langton on 14 October 2009 ordering the parties to pay the repair costs equally and for Mr Chrisp to obtain two independent quotes. APP 73 of 2010 related to orders made on 3 September 2010 granting default judgment against Mr Jackson following Mr Chrisp obtaining the repair quotes. The decision in the two appeals is reported as Jackson v Chrisp [2011] WADC 38. Her Honour Judge Wager dismissed the two appeals. In APP 73 of 2010, her Honour stuck out the appeal as the District Court did not have jurisdiction to deal with the appeal on the basis that the relevant decision was that of registrar [12]. The formal order made included an order that Mr Jackson pay Mr Chrisp's costs to be taxed, including reserved costs.
In APP 74 of 2010, her Honour dismissed the appeal on the basis that it was commenced out of the time limit in Magistrates Court (Civil Proceedings) Act 2004 (WA) s 40, there being no discretion to extend this time limit. The court ordered Mr Jackson to pay Mr Chrisp's costs to be taxed including reserved costs. These costs were taxed at $7,731.88 at a hearing on 25 May 2011. The deputy registrar left open an opportunity for the party to file objections. At the hearing before me on 24 April 2013, Ms Jackson said that he had lodged an objection. Counsel for Mr Chrisp said that he was not aware of any objection being filed. Mr Jackson subsequently provided the court with a copy of a letter marked to the 'attention of the Taxing Officer' with reference to APP 73 and APP 74 of 2010 dated 1 June 2011. The court has no record of receiving this document. It is not on either court file (APP 73 of 2010 and APP 74 of 2010). At the request of Mr Chrisp, on 5 October 2012, (following the conclusion of the appeal to the Court of Appeal) the taxing officer signed the certificate of taxation for APP 74 of 2010. As the certificate of taxation has been signed, the deputy registrar has no further power to consider the objection: Rules of the Supreme Court 1971 (WA) (RSC) r 54(4). The signed certificate of taxation may be enforced as a judgment of the court: RSC O 66 r 57.
The Court of Appeal allowed the appeal from the decision in APP 73 of 2010, setting aside the orders of the Magistrates Court to which it related. The Court of Appeal further ordered Mr Chrisp to pay Mr Jackson's reasonable disbursements to be taxed if not agreed. As at the date of the hearing before me, Mr Jackson had not commenced the process of having these disbursements taxed.
The Court of Appeal dismissed the appeal from the decision in APP 74 of 2010, meaning that the obligation on Mr Jackson to pay Mr Chrisp's taxed costs remains. It is this obligation that Mr Chrisp seeks to enforce.
On 19 November 2012, Mr Chrisp (through his lawyers) applied for a PSSO over Mr Jackson's property at 20 Heather Road, Roleystone, in relation the taxed costs from APP 74 of 2010. This order was issued by the court on 23 November 2012 on the usual ex parte basis (Circular to Practitioners CIV 2006/2, Applications under the Civil Judgments Enforcement Act).
On 2 January 2013, Mr Jackson filed an application for a suspension order in relation to the PSSO issued on 23 November 2012. As a result of an oversight by the registry, this application was not listed for initial mention until 3 April 2013. At that hearing I made orders programming the application through to a hearing on 24 April 2013. I also suspended the enforcement of the PSSO issued on 23 November 2012 until this hearing.
At the hearing on 24 April 2013, I extended this interim suspension pending delivery of this decision.
The Court of Appeal (Pullin JA) had previously suspended enforcement of the taxed costs in both appeals pending their determination by the Court of Appeal.
Issues arising for determination
The power to make an order 'suspending the enforcement of all or part of [a] judgment' is found in Civil Judgments (Enforcement Act) 2004 (WA) (CJEA) s 15. By CJEA s 15(3), when hearing an application for suspension order 'the court may only make such an order if there are special circumstances that justify doing so'. By CJEA s 15(4), 'a suspension order may be made for any period (including an indefinite period) and may be made on terms as to costs or otherwise'.
The onus is on Mr Jackson to move the court to a favourable exercise of its discretion: MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [2011] WASCA 43 [4]; Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd [2010] WASCA 226 [16]; Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].
As preliminary issue, Mr Jackson asserts that the effect of the orders of the Court of Appeal is that no costs are payable in relation to APP 74 of 2010. This, he says, is because the Court of Appeal ordered that ‑ 'There be no orders as to costs' – in relation to the appeal before it against the decision in APP 74 of 2010. I disagree. The primary order made by the Court of Appeal was that: 'The appeal with respect of District Court Appeal No 74 of 3020 be and is hereby dismissed'. Unlike appeal APP 73 of 2010, the orders made by Wager DCJ were not set aside. The costs order in APP 74 of 2010 stands and may be enforced.
Mr Jackson's affidavit evidence and submissions may be summarised into six issues relevant to the exercise of the discretion in CJEA s 15:
·The PSSO is irregular
·The PSSO is inaccurate
·It would be unjust to enforce the PSSO pending determination of the MCA s 36 application as that application is likely to result in the orders ultimately underlying the PSSO being set aside
·He is owed money by Mr Chrisp from the costs orders made in the Court of Appeal
·The PSSO being over his house is excessive and therefore unjust
·Enforcement of the PSSO would cause him hardship
The first two issues, if established, give rise to the ability of the court to set aside the PSSO issued on 23 November 2012.
The only additional issue raised by counsel for Mr Chrisp was the delay by Mr Jackson in bringing this application.
Was the PSSO irregular?
The court has a wide power to cancel or amend the PSSO issued on 23 November 2012: CJEA s 103. It has a specific power to set aside an order, including a PSSO, if 'satisfied that an irregularity has occurred in connection with the making or the carrying out of the order': CJEA s 105. These powers are not, however, wide enough to allow empower a court considering an application under the CJEA to set aside the costs order in APP 74 of 2010 sought to be enforced pursuant to the CJEA.
Mr Jackson asserts that the PSSO issued on 23 November 2012 is irregular because it was not served on him. He first became aware of it on 21 December 2012 when the sheriff served notice of the order on him.
There is, however, no obligation on a judgment creditor to serve a copy of either the application for a PSSO, or the PSSO itself, on the judgment debtor. The obligation on the judgment creditor is to serve the PSSO on the Sheriff: CJEA s 60. I am not satisfied that the PSSO issued on 23 November 2012 is irregular on this basis.
Mr Jackson also asserts the PSSO issued on 23 November 2012 is irregular because in the underlying action in the Magistrates Court Mr Chrisp falsely represented that he is the owner of 22 Heather Road, Roleystone, adjoining that of Mr Jackson.
Counsel for Mr Chrisp accepted that he is not currently registered proprietor of the property at 22 Heather Road, Roleystone. Rather, it is his wife, Kathleen Ann Chrisp. The certificate of title before me shows that Ms Chrisp became the registered proprietor on 10 July 2009. Mr Chrisp, does however, appear to have been the registered proprietor of the property as at 15 May 2009 when the initial application was filed in the Magistrates Court.
Mr Jackson submitted that this means that Mr Chrisp was not the owner of the property at 22 Heather Road, Roleystone, as defined in the DFA, at the time when the orders were made by Magistrate Langton on 14 October 2009. Mr Chrisp, he says, therefore had no standing to apply for, nor be granted, any orders pursuant to the DFA.
The status of the costs orders in APP 74 of 2010 is as described by Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529, at 530:
Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.
The passage was referred to with approval by Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ in DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 [37] ‑ [38]. The court does have a very limited power to recall perfected orders, including on the ground of fraud: DLJ [37]. However, unless and until that occurs, a perfected order is valid and enforceable.
The PSSO issued 23 November 2012 is not irregular on the ground that there were additional factual issues which arguably ought to have been considered by the magistrate at first instance.
Mr Jackson also referred to CJEA s 13(1)(d). This subsection relevantly provides that '[l]eave of the court must be obtained before an order may be made under this Act to enforce a judgment … if the person seeking to enforce the judgment was not personally a party to the case in which the judgment was given'. However Mr Chrisp was a party to the case in which the judgment, the costs order in APP 74 of 2010, was given. The fact that he may not have been entitled to have been such a party does not undermine the validity of the order made unless and until the order is set aside.
Was the PSSO is inaccurate?
Civil Judgments Enforcement Regulations 2005 (WA) (CJER) reg 11 empowers Mr Jackson to apply to the court to set aside a PSSO as being irregular pursuant to CJEA s 105 on the basis that he believes that the judgment debt sought to be recovered is incorrect.
The following table sets out the amounts claimed in the PSSO issued on 23 November 2012, and their basis:
Amount
Description
Basis
$7,731.88
Judgment sum
Taxed costs
$57.15
Interest to last payment
CJEA s 8, CJER reg 4 (6%)
$66.00
Court application fee
CJER Schedule 1
$1,177.00
Lawyers costs
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA) Clause 11, item item 29.
$9,032.03
Total
The amount of $9,032.03 in the PSSO issued on 23 November 2012 is correct.
In my view, there is no irregularity in the PSSO issued on 23 November 2012 on the basis on an inaccuracy in the amount claimed. It validly enforces the costs order made by Judge Wager and taxed on 25 May 2011.
MCA s 36 application
As I have noted, on 22 April 2013, Mr Jackson commenced an application pursuant to MCA s 36 in relation to the decision of Magistrate Langdon on 14 October 2009. This decision was the decision to which APP 74 of 2010 related. He asserts that, if successful, the application would effectively nullify the orders of Judge Wager, including the costs order the subject of the PSSO.
The MCA s 36 application was before Justice McKechnie in the Supreme Court on 2 May 2013. His Honour made orders programming the application towards a hearing. His Honour further ordered the proceedings in the Magistrates Court be stayed pending further determination of the review order.
Magistrates Court Act s 36 contains a broad power for the Supreme Court to review acts, orders or directions of a court officer, which term includes a magistrate: MCA s 3. Counsel for Mr Chrisp did not seek to argue that the decision of Magistrate Langdon on 14 October 2009 was not a decision to which MCA s 36 could apply, nor that Mr Jackson did not have standing to make the application. There is no time limit in the MCA as to when an application may be made.
The existence of an appeal from the decision which founds the PSSO is a well established factor in the exercise of the discretion to suspend enforcement of a PSSO: Smith; Spiers Earthworks. The principles applicable to an application under CJEA s 15 are not materially different from those which applied to an application for a stay of execution before the introduction of that Act: Smith [3]; Spiers Earthworks [15]. The general principles that were applicable to the exercise of the court's jurisdiction to stay a grant of execution were summarised by Murray and Parker JJ in Eastland Technology [9] as follows:
The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.
It is for the applicant for a stay to move the court to a favourable exercise of its discretion.
It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory.
If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.
If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.
In Spiers Earthworks, Newnes J [17] added that while 'those principles provide guidance in the exercise of the discretion, they are not inflexible or exhaustive, and at all times the ultimate question must be whether there are special circumstances which justify a court ordering a stay'.
In Smith, Pullin J A [47] stated that 'the first issue which usually has to be confronted is whether or not a stay is necessary to preserve the subject matter or integrity of the litigation or where the refusal of a stay could create potential difficulties in respect of the relief which may be granted on appeal; that is that without the grant of a stay, the right of appeal would be rendered nugatory'. This may arise where the appellant is required to pay out money to the respondent in the appeal on the first instance decision and then not be able to recover that money in the event of a successful appeal. In TheCommissioner of Taxation for the Commonwealth of Australia v Myer Emporium Limited [1986] HCA 13; (1986) 160 CLR 220, 222 ‑ 223, Dawson J observed:
It is well established by authority that the discretion which it confers to order a stay of proceedings is to only be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal… Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, is successful, from being nugatory… Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering monies paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed …
As to the merits of Mr Jackson's MCA s 36 application, Murphy JA made comments in his judgment which appear to support Mr Jackson's contention that the MCA s 36 application has merit (Jackson (CoA) [130] the reference to orders made on 14 October 2009 being to the orders the subject of APP 74 of 2010 – my emphasis):
Although the appeal with respect to the orders of 14 October 2009 should be dismissed, it is appropriate to make the following further observations. The first of those orders was, in effect, made without legislative authority and would, prima facie, be amenable to judicial review on the basis of error of law on the face of the record or on the basis of being made without jurisdiction. The second order is dependent on the first. Moreover the orders of 14 October 2009 are, in practical terms, spent as they purport to relate to the circumstances existing with respect to the fence as at 14 October 2009, and it appears that there have been changes to the state of the fencing since then. If Mr Chrisp attempted to enforce those orders it would, prima facie, be open to Mr Jackson to apply to set them aside in proceedings for judicial review pursuant to s 36 of the Magistrates Court Act. In practical terms, any subsisting dispute over repairs to the dividing fence will need to be the subject of fresh proceedings, unless commonsense prevails and an appropriate agreement is reached. In any future proceedings, the parties should pay careful attention to the precise provisions of the Dividing Fences Act which they wish to invoke and comply with those provisions; they should identify precisely the orders sought; they should adduce proper evidence relevant to the orders sought; and they should also ensure that the proper parties are joined.
Mr Jackson interpreted the passage which I have placed in italics as referring to both the orders made in the Magistrates Court and the costs orders made in the District Court. In my view, this interpretation is not correct. In context, Justice Murphy is clearly only referring to the two orders made in the Magistrates Court the subject of the two appeals to the District Court.
The difficulty in applying the principles as regards appeals to an application pursuant to MCA s 36 is that, in this case, the two processes are not relevantly analogous. Where an appellant applies for a suspension order pending the outcome of an appeal against the orders sought to be enforced, the appeal court will have the power to set aside the orders sought to be enforced. Hence the appellant can justifiably assert that it is unjust for the order to be enforced as it may be set aside on appeal, and (for example), there may be difficulties in being able to recover money paid to the respondent pursuant to the initial decision following a successful appeal.
This is different to the position that arises where an application is made pursuant to MCA s 36. On a plain reading of MCA s 36, even if the Supreme Court determines the application in favour of Mr Jackson, there is no power to set aside costs orders made in the District Court. The power in MCA s 36 is to control the exercise of jurisdiction by officers of the Magistrates Court, not Judges of the District Court. Therefore, even if the MCA s 36 application is entirely successful, the costs order in APP 74 of 2010 will still stand. On this basis, I am not satisfied that the existence of the MCA s 36 application ought to be given any weight in the exercise of the discretion pursuant in CJEA s 15: Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 65 [15].
It is also important for me to record that at the hearing before me on 24 April 2013, counsel for Mr Chrisp gave an undertaking to the court not to enforce the orders made by Magistrate Landgton on 14 October 2009. This calls into question the utility of the MCA s 36 proceedings.
Countervailing costs orders made in the Court of Appeal
As noted, the Court of Appeal ordered Mr Chrisp to pay Mr Jackson's disbursements in relation to the successful appeal against the decision of the District Court in APP 73 of 2010. In his affidavit of 12 April 2013, Mr Jackson deposes that he had to prepare 35 bound volumes of appeal books. He asserts that his disbursements in the appeal will be greater than the debt claimed from him, the subject of the PSSO. He states his intention to defer taxing these disbursements until after the conclusion of the MCA s 36 appeal.
The existence of a debt owed by Mr Chrisp is a factor of considerable weight in the exercise of the discretion to suspend the PSSO issued on 23 November 2012.
A PSSO over the house is excessive and therefore unjust
A number of Mr Jackson's submissions may be summarised as being that allowing a PSSO over this house is excessive therefore unjust. He submits that the attempt to sell his family house was 'vindictive' given the other property available to satisfy the judgment debt.
The property at 20 Heather Road, Roleystone, is jointly owned by Mr Jackson and his wife. In this context, CJEA s 67 provides:
67. Interests of others
If a person other than the judgment debtor has any legal or equitable interest in any personal or real property in which a judgment debtor has a saleable interest that may be sold under a property (seizure and sale) order, that interest and that of the debtor may be sold together if —
(a)the Sheriff is of the opinion that such a sale is desirable;
(b)the other person consents in writing; and
(c)the Sheriff and the other person agree in writing before the sale as to the division of —
(i)the expenses of and incidental to the sale or any attempted sale of the property; and
(ii)the proceeds of the sale after payment of those expenses.
Mr Jackson deposes in his affidavit of 12 April 2013 that his wife has not consented to sale of the property.
By letter dated 22 March 2013, the sheriff advised Mr Jackson that he was in the process of preparing to sell his interest in the property the subject of the PSSO and was about to commence advertising.
It is not immediately apparent to me how the interest of a joint tenant in real estate may be sold. I was not able to find a process in the CJEA for the sale of the interest of one joint tenant where the other declines to consent to a sale for the purposes of CJEA s 67.
Mr Jackson also asserts that Mr Chrisp ought first to have sought to sell his personal property. This is consistent with the requirement in CJEA s 64 that personal property is to be sold in preference to real property. Further, under a PSSO, the sheriff must not sell more property than is sufficient, in the sheriff's opinion, to wholly satisfy the judgment debt: CJEA s 65.
Mr Jackson deposes in his affidavit of 12 April 2013 that he has a car insured for over $12,000 and house contents insured for nearly $150,000.
Mr Chrisp has not applied for the issue of a PSSO over personal property. Nor has he applied for a means inquiry.
Hardship
In considering there are 'special circumstances' as required by CJEA s 15(3), the court may consider hardship and the balance of convenience, encompassing the same kinds of considerations as will arise where the court considers the grant of an interlocutory injunction: Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 81, at 91, 94; Duckworth v Commonwealth Bank of Australia [2013] WASCA 24 [2]; Alvaro v Amaral [2013] WASCA 16 [3].
That the court may consider the personal circumstances of the judgment debtor in exercising the powers in the CJEA is also evident from CJEA s 21. This section directs the court to look to the impact of the obligations sought to be imposed on the judgment debtor before making certain orders:
21.Certain orders only available at or after means inquiry
(1)The following enforcement orders —
(a)a time for payment order;
(b)an instalment order;
(c)an earnings appropriation order,
may only be made in respect of a judgment debtor at or, subject to section 31(4), after a means inquiry in respect of the judgment debtor.
(2)In making an order referred to in subsection (1) in respect of a judgment debtor who is a natural person, the court should ensure that the order does not impose unreasonable obligations on the judgment debtor having regard to the judgment debtor’s means to satisfy the judgment.
The explanatory memorandum to the CJEA contains the following general comment about the power in s 15 (at p 5 ‑ 6):
Circumstances may arise where enforcement action has been commenced and it is just that the enforcement be suspended. An example is where judgment was obtained by default in that the defendant did not respond to a summons but there is an explanation for the default such as hospitalisation. Another example could be where the debtor was impecunious.
The comment about the suspension order being made where it is 'just' echoes the reference from the decision in Hamersley Iron cited above that the discretionary considerations in the context of a suspension order (and its predecessor, a stay of execution) are similar to those considered by a court on an interlocutory injunction application. In the injunction context, the key discretionary consideration is sometimes expressed as the balance of the risk of doing an injustice: Cayne v Global Natural Resources plc [1984] 1 All ER 225, at 237; Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533, at 536.
Mr Jackson, in his affidavit dated 2 January 2013, stated the following of his financial circumstances:
·He is 72 years old
·He is on a pension of $573 per fortnight
·His wife has a limited income of $6,000 a year
·As at 31 December 2012, he owed around $285,000 to the Commonwealth Bank in what appears to be a combination of a line of credit facility and two credit cards
In his affidavit of 2 January 2013, Mr Jackson deposes that his 'sole asset to cover the P.S.S.O is the family home which would have to be sold if I am ordered to pay this amount now' (par 3). This is contradicted in his affidavit of 12 April 2013 in which he deposes that he has a car insured for nearly $13,000 and home contents insured for nearly $150,000 (par 13).
Mr Jackson submitted from the bar table that he has no ability to secure further funds from the bank facility.
What final orders are appropriate?
It appears to me that the issue of the PSSO on 23 November 2012 in relation to Mr Jackson's house for an amount under $10,000 was excessive. No attempt was made to have Mr Jackson examined on a means inquiry. He has disclosed on affidavit the existence of other property which could have been sold on a PSSO directed to his personal property. The fact that the real estate the subject of the PSSO was jointly owed ought to have been another clear indicator that the exercise of the power was excessive, at least until other options has been exhausted.
I am satisfied that the 'special circumstances' required by CJEA s 15 exist in the present case. The relatively small amounts involved in the context of the excessive nature of the PSSO over Mr Jackson's house and the history of litigation between the parties warrant the application of the discretion in CJEA s 15 as a means of allowing the court to oversee the enforcement process to ensure that justice is done.
For the reasons set out above, I am not satisfied that the existence of the MCA s 36 application ought to be given any weight in the exercise of the discretion pursuant in CJEA s 15.
Nor am I satisfied that there has been any delay by Mr Jackson in making this application. He filed the application promptly after being notified of the existence of the PSSO by the sheriff.
The factor of most significance in the exercise of the discretion in CJEA s 15 is the existence of a costs order in the Court of Appeal in Mr Jackson's favour. Given the fervour with which the parties have litigated over the past four or so years, it is readily apparent to me that Mr Jackson will have to resort to enforcement processes against Mr Chrisp in order to recover any amount determined by the Court of Appeal. It seems to be that the balance of the risks of injustice in this case lies in suspending enforcement of the taxed costs in District Court Appeal APP 74 of 2010 pending assessment of these disbursements. This should occur as soon as practicable. Once this is done, there should be liberty to apply in relation to the suspension order to determine the ultimate outcome. To the extent that there is a residual amount to be paid by Mr Jackson to Mr Chrisp, I am not currently persuaded Mr Jackson's financial position is such that it would be just to suspend enforcement. He appears to have ample personal property to satisfy this debt as well as equity in his house which he may be able to utilise if required.
My preliminary view as to the orders to give effect to the reasons set out above is as follows:
1.enforcement of the taxed costs in District Court Appeal APP 74 of 2010 by way of a property (seizure and sale) order over the property at 20 Heather Road, Roleystone be suspended until further order;
2.enforcement of the taxed costs in District Court appeal APP 74 of 2010 by other order be suspended until 31 May 2013;
3.if Mr Jackson files a bill of disbursements in relation to his disbursements in Court of Appeal matter CACV 37 of 2011 by 31 May 2013, enforcement of the taxed costs in District Court Appeal APP 74 of 2010 by other order be suspended until the taxation of this bill of disbursements or further order; and
4.there be liberty to the parties to apply in relation to the orders in par 1 to 3.
The liberty to apply is wide enough to allow Mr Chrisp to seek to have the suspension order in par 1 lifted should Mr Jackson delay in taxing his disbursements.
I will hear from the parties as to the final form of the orders and costs.
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