KB Productions 2001 Pty Ltd v Kurt
[2016] NSWSC 44
•09 February 2016
Supreme Court
New South Wales
Medium Neutral Citation: KB Productions 2001 Pty Ltd v Kurt [2016] NSWSC 44 Hearing dates: 9 February 2016 Date of orders: 09 February 2016 Decision date: 09 February 2016 Jurisdiction: Common Law Before: Davies J Decision: 1. Defendant’s application to dismiss the Plaintiff’s Notice of Motion dated 9 February 2016 refused.
2. Plaintiff’s Notice of Motion dated 9 February 2016 to be returned to the Registrar for consideration under the Rules.Catchwords: JUDGMENTS – application to pay by instalments – whether application should be dismissed for failure to comply with procedural directions – application returned to Registrar for determination Cases Cited: KB Productions 2001 Pty Ltd (Deregistered) and Ors v Kurt and Anor [2015[ NSWSC 1415 Category: Procedural and other rulings Parties: KB Productions 2001 Pty Ltd (First Plaintiff)
Kangaroo Property Holdings Pty Ltd (Second Plaintiff)
George Dimitriou (Third Plaintiff)
Aynur Kurt (First Defendant)
Osman Kurt (Second Defendant)Representation: Counsel:
Solicitors:
In person (Third Plaintiff)
L Rizos (Defendants)
Self-represented (Third Plaintiff)
Rizos & Associates Solicitors (Defendants)
File Number(s): 2015/258997)
Judgment
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On 18 September 2015 Justice Beech-Jones made a lump sum costs order against inter alia George Dimitriou in the sum of $27,500: KB Productions 2001 Pty Ltd (Deregistered) and Ors v Kurt and Anor [2015[ NSWSC 1415.
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On 13 October 2015, Mr Dimitriou made an application to pay the judgment by monthly instalments of $5,000. I am told that application was dismissed.
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On 15 October, Mr Dimitriou filed a further application to pay by instalments at $5,000 per month. It seems that application was also dismissed.
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On 26 October Mr Dimitriou filed for a third time seeking to pay two instalments on a fortnightly basis at $2,500 and thereafter to pay fortnightly $7,500. The financial statement was considered to be inadequate. Orders were made by the Registrar on 30 October that Mr Dimitriou was to file and serve an amended financial statement within 28 days. He did not do so and no explanation has been offered why he failed to do so.
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Proceedings were stood over to 28 January 2016 before the Registrar. On that day the Registrar extended the time for Mr Dimitriou to comply with the orders made on 30 October to 5 February 2016. No amended financial statement was filed by 5 February.
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The judgment creditor has now had the proceedings referred to me as Duty Judge asking that the application be dismissed because of the breaches of Registrar Bradford’s orders.
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Mr Dimitriou says that on Friday 5 February he attempted in the Registry to file an amended financial statement which in fact was described as “Draft Financial Statement” was attached to a further Motion to pay by instalments of $2,500 in fortnightly steps. He says that the Registry refused to accept the documents on 5 February. He described it as a draft financial statement because he had included in it what was said to be contingent liability. The need to call it a draft statement when a contingent liability was included was not apparent.
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The Notice of Motion containing that draft financial statement was in fact filed this morning by Mr Dimitriou. The affidavit in support of it on the face of it was sworn on 5 February 2016 which adds some support to Mr Dimitriou’s assertion that he at least attempted to file the documents including the draft financial statement on 5 February as the Registrar had ordered. Were it not for the fact that on balance I accept that he did so attempt I would have dismissed his motion for failing to comply with the Registrar’s orders..
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The matter has all the appearance of a judgment debtor attempting to string the matter out. No amounts have been paid by Mr Dimitriou to satisfy the judgment that was given despite all of the time that he has filed applications to pay by instalments. The judgment creditor suggests that these applications have been filed simply to avoid an impending bankruptcy. The chronology of the matter tends to support that view.
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Nevertheless, where I have accepted that he attempted to file these financial statements in compliance with the extended time given to him by the Registrar, I do not think it would be appropriate to dismiss his motion.
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The application for instalments will be returned to the Registrar for consideration under the Rules. The application to dismiss the Motion is refused.
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Decision last updated: 10 February 2016
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