King Island Meatworks and Cellars Pty Ltd v Bonjust Pty Ltd

[2012] VCC 603

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

COMMERCIAL LIST
EXPEDITED CASES DIVISION

Case No. CI-10-03795

KING ISLAND MEATWORKS & CELLARS PTY LTD	Plaintiff
v.
PIERO MASTROMANNO and BONJUST PTY LTD	Defendants

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2012
DATE OF JUDGMENT:	11 May 2012 (revised on 11 May 2012)
CASE MAY BE CITED AS:	King Island Meatworks & Cellars Pty Ltd v. Bonjust Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VCC 603

REASONS FOR JUDGMENT

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Catchwords:            Practice and procedure – Application for payment of judgment debt by instalments – Application refused by Registrar – Rehearing – Offer to pay judgment debt by instalments over 5 year period – Period too long in the circumstances – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Mastramanno (by leave)
For the Second Defendant	Mr P. Mastramanno (by leave)

HIS HONOUR:

1. A Deputy Registrar of the Court refused an application by the judgment debtor, Bonjust Pty Ltd, to pay a judgment debt by instalments. The judgment debtor has filed a notice of objection and the matter comes to the Court for determination by way of a rehearing.

2. The judgment was entered for the plaintiff against the second defendant (the judgment debtor) by Her Honour Judge Lewitan on 29 February 2012. The judgment was in favour of the plaintiff against the second defendant in the sum $139,500 together with interest from 20 July 2011, fixed at $9,024.02. Both the judgment debtor and judgment creditor are companies. The sole directors and shareholders of each company applied for and were granted leave to represent their respective companies upon this application. The judgment creditor was represented by Mr Alex Mastramanno. The judgment debtor was represented by his brother, Mr Piero Mastramanno.

3. Bonjust Pty Ltd is the trustee of the P. Mastramanno Family Trust. The beneficiaries of the trust are Piero Mastramanno and his wife, Michelle Bertuola. The trust apparently conducts a butcher shop at Highett and Mr Piero Mastramanno is employed in that business. The financial accounts for the P. Mastramanno Family Trust for the year ended 30 June 2011 disclose that the trust had a net profit of $88,138 and that the expenses included wages of $59,271 and legal costs of $88,071. Apparently, in recent years, there have been more than one legal proceeding between the Mastramanno brothers which have resulted in the incural of substantial legal costs. One of those proceedings involving a property transaction which was resolved by Mr Alex Mastramanno paying a substantial sum to his brother.

4. The present proceeding, involving a dispute over the butcher shop at Highett, was resolved by the judgment entered by Judge Lewitan on 29 February 2012. It is likely, therefore, that the family trust will not regularly incur substantial legal costs in the future. The judgment debtor’s application was to pay the judgment debt by instalments calculated over a period of 5 years. It is not clear whether the calculation takes account of the interest that would continue to accrue over that period. The proposal was that the first instalment of $2,475.40 would be paid on 11 April 2012.

5. The application, dated 21 March 2012, notes under the heading “Grounds on which the application is made” that the judgment debtor cannot pay the total amount as a lump sum because “there are not enough funds in our bank account to pay a lump sum and to keep operating our business as a going concern”. As that was the application made before the Registrar, it is the application I must consider by way of rehearing at this time.

6. I consider that the application for an instalment order for payment of the judgment debt by instalments of $2,475.40 each month should be refused as the period proposed by the judgment debtor for payment of the judgment amount by instalments is too long and does not take account of the financial circumstances available from the trust and, in particular, the following matters:

   a.The profit of the trust to the year ended 30 June 2011;

   b.The fact that profit figure took account of an unusually high amount incurred by the trust in that year for legal expenses;

   c.The fact that Mr Piero Mastramanno was an employee of the butchery business at Highett and probably, therefore, a recipient of part of the wages incurred and also is one of two beneficiaries, with his wife, of the trust.

7. The order of the Court will be that the judgment debtor’s application for payment of the judgment debt by instalments is refused.

Certificate

I certify that these 2 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 11 May 2012 and revised that day.

Dated: 11 May 2012

Hannah Christensen

Associate to His Honour Judge Anderson