Kelbush Pty Ltd v Clark - [2024] WASCA 130

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KELBUSH PTY LTD -v- CLARK [2024] WASCA 130
CORAM:   BUSS P
VAUGHAN JA
DAVID AJA

HEARD:   9 SEPTEMBER 2024
DELIVERED          :   31 OCTOBER 2024
FILE NO/S:   CACV 92 of 2023
BETWEEN:   KELBUSH PTY LTD
Appellant
AND
JARED CLARK
First Respondent
SLOBADAN MANJENCIC
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   RUSSELL DCJ
Citation: KELBUSH PTY LTD -v- CLARK [2023] WADC 72
File Number            :   APP 90 of 2021

Catchwords:

Debt appropriation order against third person - Civil Judgments Enforcement Act 2004 (WA) - Third person alleged to have provided damage cover through a rental car agreement - Meaning of 'available debt' - Where obligation may arise in respect of an existing cause of action - Where appropriated debt was not yet due and payable - Objection on the basis that appropriated debt does not or will not exist - Construction of a court order - Court order to be read in context and surrounding circumstances - Appeal dismissed

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 45, s 46, s 49, s 50, s 51, s 52, s 54(1)(b), s 55
Civil Judgments Enforcement Regulations 2005 (WA), r 103(1)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	G R Hancy
First Respondent	:	L N Firios
Second Respondent	:	No appearance

Solicitors:

Appellant	:	Kennedy Vinciullo
First Respondent	:	McCabes
Second Respondent	:	No appearance

Case(s) referred to in decision(s):

Clark v Manjencic (Unreported, MCWA, 15 November 2021)
Clyne v Deputy Commissioner of Taxation [1981] HCA 40; (1981) 150 CLR 1
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [2023] WASCA 108
Kelbush Pty Ltd v Clark [2023] WADC 72

JUDGMENT OF THE COURT:

Overview

This appeal concerns the validity of a debt appropriation order made pursuant to s 49 of the Civil Judgments Enforcement Act 2004 (WA).
The appellant, Kelbush Pty Ltd trading as Northside Rentals (Northside), is the recipient of the debt appropriation order. The debt appropriation order was issued on the application of the first respondent, Jared Clark, who we will refer to as the 'judgment creditor'. The 'judgment debtor' is Slobadan Manjencic, the second respondent.
The judgment creditor obtained a judgment debt of $3,387.22 against the judgment debtor out of the Magistrates Court at Perth on 3 March 2021. Subsequently the judgment creditor sought and obtained the debt appropriation order. Northside objected to the debt appropriation order. A later application to the Magistrates Court for an order that the objection be allowed was dismissed.[1] So too was an appeal from that order to the District Court of Western Australia.[2] This appeal is an appeal against the order of the District Court.
[1] Clark v Manjencic (Unreported, MCWA, 15 November 2021) (Magistrate's reasons).
[2] Kelbush Pty Ltd v Clark [2023] WADC 72 (DCWA reasons).
Two primary issues arise on the appeal. First, Northside contends that the existence of an…

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: [2024] WASCA 130
Decision Date: 31 OCTOBER 2024

CaseChat Overview and Summary

Kelbush Pty Ltd, the appellant, brought an appeal against Clark, the respondent, regarding a debt appropriation order issued under the Civil Judgments Enforcement Act 2004 (WA). The appeal arose from an order made by the District Court of Western Australia, which Kelbush sought to challenge. The dispute centred on the interpretation of the 'available debt' for the purposes of a debt appropriation order against a third party, who was alleged to have provided damage cover through a rental car agreement.

The legal issues before the court were the meaning of 'available debt' under the Act, whether an obligation may arise in respect of an existing cause of action, and the validity of an objection based on the non-existence or non-existence in the future of the appropriated debt. Specifically, the court had to determine whether the debt was 'available' if it was not yet due and payable at the time of the order. Additionally, the court examined the construction of the court order and whether it should be read in the context of the surrounding circumstances.

The court held that the 'available debt' for the purposes of the Act should be interpreted broadly and should include debts that may arise from an existing cause of action, even if they are not yet due and payable. The court emphasised that the order should be read in context and the surrounding circumstances. The objection that the appropriated debt does not or will not exist was rejected. The court found that the order was valid and correctly interpreted. The appeal was dismissed.

No further orders were made by the court. The District Court's decision was upheld, and the debt appropriation order against the third party remained in effect.

Orders