Jones v Veli
[1996] IRCA 107
•23 Feb 1996
DECISION NO: 107/96
C A T C H W O R D S
INDUSTRIAL LAW - APPLICATION FOR ATTACHMENT OF EARNINGS
JONES -v- B.J. and S. VELI
No. VI 95/4238
Before: North J
Place: Melbourne
Date: 23 February 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
No VI 95/4238
B E T W E E N :
JONES
Applicant
AND
B.J. and S. VELI
Respondents
JUDGE: North J
PLACE: Melbourne
DATE: 23 February 1996
EX TEMPORE REASONS FOR JUDGMENT
This is an application for the attachment of earnings of the second respondent, Mrs Sandra Veli. She has appeared in person today. She has told the court that she disputes the judgment against her on the basis that the applicant, Mr Jones, was never employed by her, but rather by her husband, who is the first respondent. I have explained to Mrs Veli that any challenge to the judgment cannot be the subject matter of today's proceedings - that if she desires to challenge the judgment she will need to seek advice and do that in independent proceedings. Therefore, I must proceed today on the basis that the judgment of $1514.94 is valid.
Mrs Veli is employed by Coles Supermarkets Pty Limited as a departmental manager. She has given evidence that she earns $2801.69 gross per month. She has completed a statement of financial situation which discloses her expenses as $3053.55 per month. She has given sworn evidence in relation to each item listed in that statement. In addition, she has explained to the court that she drives a 1991 Holden Commodore which is under finance to GMAC and in respect of which she pays $688.00 per month.
Mrs Veli told the court that her circumstances changed radically in January 1996 when her partner left her. In a practical sense she then became responsible for a considerable amount of his business debts which had been in one way or another placed in her name. Prior to January 1996 Mr Veli contributed to some degree to the maintenance of the household which presently comprises Mrs Veli and three children, an independent 20-year old, a 15-year old and a 6-year old.
Mrs Veli's life is presently in transition, but her immediate financial commitments involve both the maintenance of the household and repayment of accumulated debts arising, she says, from her husband's business. On the figures there appears very little scope for Mrs Veli to make any significant repayments at all. Many of the itemised expenses were estimates based on Mrs Veli’s experience. I am satisfied that most of the estimates are realistic. However, there is some limited scope for minor savings. There is also the possibility that the 20-year old who lives with Mrs Veli may contribute to the expenses to some extent. Some expenses will cease in the short term. Included in her commitments is a debt to Telecom, which is being paid off by way of a garnishee order at the rate of $100 per month. Mrs Veli was unable to say how many more months are left to run to extinguish that debt. She is also paying off court orders in respect of parking fines incurred by her husband at the rate of $50 per month, and there are about five instalments still to pay. I am very conscious, having heard Mrs Veli give evidence, of the very difficult financial position in which she finds herself presently. I am, however, bound to take into account the interests of Mr Jones in having his judgment met.
In all of the circumstances it seems to me that I ought to make an order for some payment on a monthly basis by way of deduction from Mrs Veli's salary but that the amount should be a modest one. This accommodates Mrs Veli's interests in the sense that it impacts on her financial position as little as is reasonably possible, while at the same time providing for some recognition of Mr Jones’ interest in having his debt repaid.
Given that Mrs Veli's position is one of change and transition, it remains open to Mr Jones in the future to apply for a variation of the attachment of earnings order in the event that Mrs Veli's financial position improves to such an extent that the monthly amount can be increased. In all of the circumstances it seems to me that the deduction from Mrs Veli's salary to satisfy the judgment debt should be $20, and I shall make orders which reflect that decision.
I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment of his Honour Justice North.
Associate:
Dated:
Solicitors for the applicant: Michael J. Amad Pty Ltd
Counsel for the applicant: Mr A. White
Solicitors for the respondent: -
Counsel for the respondent: Mrs S. Veli (in person)
Date of hearing: 23 February 1996
Date of judgment: 23 February 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 95/4238
B E T W E E N :
JONES
Applicant
AND
B.J. and S. VELI
Respondent
ORDER
JUDGE: North J
PLACE: Melbourne
DATE: 23 February 1996
THE COURT FINDS THAT:
(a)By a judgment given on 27 November 1995 it was adjudged that the second respondent, Sandra Veli, pay to the applicant, Alan Jones, $1514.
(b)$1514 is due and unpaid in respect of the judgment.
(c)The second respondent is employed by Coles Supermarkets Pty Limited (ACN 004 189 708) in the State of Victoria as a delicatessen manager and is a person to whom earnings are payable or are likely to become payable by that employer.
THE COURT ORDERS THAT:
Coles Supermarkets Pty Limited (ACN 004 189 708), on each pay-day whilst the second respondent is employed by it or until this order ceases to have effect do make payments out of the earnings of the second respondent at the rate calculated in accordance with this order to Alan Jones, care of Michael J. Amad Pty Limited, solicitors, PO Box 357, Boronia, 3155, for or towards securing payment of $1514, being the amount of $1514 due and unpaid in respect of the judgment.
For the purpose of calculating the normal deduction for the purposes of paragraph 4 of this order the normal deduction rate shall be $20 each pay-day.
The protected earnings rate, that is, the rate below which the earnings of the second respondent may not be reduced by payment under this order, shall be $20.00 in respect of each pay-day.
The employer shall, in respect of each pay-day whilst the order is in force, if the net earnings of the second respondent exceed the sum of -
(a)the protected earnings of the second respondent; and
(b) so much of any amount by which the net earnings became payable on any previous pay-day were less than the protected earnings in relation to that pay-day as has not been made good on any previous pay-day -
pay, so far as that excess permits, to the applicant the normal deduction in relation to that pay-day and so much of the normal deduction in relation to any previous pay-day as was not paid on that pay-day and has not been paid on any other previous pay-day.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
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