Lewis v Leslie - [2001] VSC 110

SUPREME COURT OF VICTORIA Not Restricted

COMMON LAW DIVISION

No. 6512 of 1999

ROBERT ANDREW CALLAWAY LEWIS AND ANOR

Plaintiff

v

IAN GEORGE LESLIE

Defendant

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JUDGE:

McDonald J

WHERE HELD:

Melbourne

DATE OF HEARING:

30 March 2001

DATE OF JUDGMENT:

5 April 2001

CASE MAY BE CITED AS:

Lewis and Anor v Leslie

MEDIUM NEUTRAL CITATION:

[2001]VSC 110

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Debt - Recovery - Judgment debt, application for order that debt be discharged by instalments - Notice of objection against refusal to make order - Nature of hearing before judge - New proposal as to instalments not had regard to - Discretion of judge - Application dismissed - Judgment Debt Recovery Act 1984 ss.6(2)(a)(b),(c),(7).
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APPEARANCES: Counsel Solicitors

For the Plaintiffs Mr M. Galvin Lewis Walker

For the Defendant Mr R. Andrew
HIS HONOUR:
1 The present proceeding before the court is an application by the defendant pursuant to s.6(7) of the Judgment Debt Recovery Act 1984.

2 The proceedings in this action were commenced by writ on 16 August 1999. By their statement of claim endorsed on the writ, the plaintiffs, who at all material times are and were legal practitioners, claimed against the defendant payment of $235,771.81. The plaintiffs alleged that such amount was due by him to them on 16 August 1999, together with interest due and continuing to be due on that sum. By their statement of claim the plaintiffs alleged that the defendant was indebted to them in the aforesaid sum together with interest thereon, pursuant to the terms of written agreements entered into by the defendant with them and dated 30 June 1988 (the first guarantee) and 9 February 1999 (the second guarantee) whereby and pursuant to each agreement the defendant had guaranteed payment of monies due to them by Arrow Collections Pty Ltd (Arrow).

3 By his amended defence and counterclaim, filed on 5 November 1999, the defendant denied that he was indebted to the plaintiffs. In part, the defendant alleged that the plaintiffs were in breach of the duty owed by them to him as they had failed to disclose to him any unusual features or material variations in the relationship or transactions between them and Arrow, which would have the effect of making the position of Arrow different to that which he would otherwise expect. Further he alleged that the plaintiffs failed to act in good faith with regard to his interests as surety of Arrow's obligations under an agreement alleged to have been entered into between the plaintiffs and Arrow, or alternatively Arrow Collection Services Pty Ltd identified in the defence and counterclaim as the "profit sharing agreement".

4 The defendant alleged that by reason of such breaches of duty by the plaintiffs he is released from and entitled to be discharged from liability in whole or in part under each of the first guarantee and the second guarantee.

5 Further, the defendant has alleged that the second guarantee was entered into by him pursuant to a unilateral mistake of…

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.

Continue reading Lewis v Leslie

Details

AGLC: Lewis v Leslie [2001] VSC 110
Case: [2001] VSC 110
Decision Date: 5 April 2001

CaseChat Overview and Summary

The case of Lewis v Leslie involved a dispute regarding the recovery of a judgment debt. The plaintiff sought an order for the debt to be discharged by instalments, while the defendant opposed the application. The matter was heard in the Supreme Court of Victoria. The primary legal issue the court had to determine was whether the judge's discretion under the Judgment Debt Recovery Act 1984 was exercised correctly, specifically whether the judge considered the defendant's new proposal for instalment payments.

The court examined whether the judge had properly exercised their discretion when deciding not to grant the plaintiff's application. The judge had not taken into account the defendant's new proposal for instalment payments, which was presented after the notice of objection had been served. The court held that this omission constituted an error in procedure as it failed to consider all relevant information available at the time of the hearing. As a result, the court concluded that the judge's discretion was not exercised correctly, and the application was dismissed.

In reaching its decision, the court emphasised the importance of considering all available evidence when exercising discretion under the Judgment Debt Recovery Act 1984. The court noted that the failure to consider the defendant's new proposal was a significant procedural error that warranted the dismissal of the application. The court's ruling underscored the necessity for judges to meticulously evaluate all submissions and evidence presented during the hearing to ensure a fair and just outcome.

The final orders of the court were that the application by the plaintiff to have the judgment debt discharged by instalments was dismissed. The court's decision highlighted the critical importance of procedural fairness and the need for judges to consider all relevant factors before exercising their discretion under the Act.

Orders