Marinchek v O'Sullivan - [2014] NSWLC 5

Local Court

New South Wales

Medium Neutral Citation: Marinchek v O'Sullivan [2014] NSWLC 5
Hearing dates: 01/05/2014; 15/05/2014
Decision date: 22 May 2014
Jurisdiction: Civil
Before: Magistrate C O'Brien
Decision:
1.The Notice of Motion filed 25 March 2014 is dismissed.
2.The judgment debtor is to pay the judgment creditors' costs of the motion on the ordinary basis as agreed or assessed.

Catchwords: CIVIL PROCEDDINGS - review of Registrar's decision - instalment orders - principles to be applied in the making of instalment orders - indemnity costs
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Cahill v Howe [1986] VR 630
Calderbank v Calderbank [1975] 3 All ER 333
Chint Australasia Pty Ltd v Cosmoluce Pty Ltd [2008] NSWSC 1054
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Hamod v State of New South Wales (2002) 188 ALR 659
Harrison v Schipp [2001] NSWCA 13
Helliar Capital Pty Ltd v Richard Albarran [2009] NSWSC 403
Huntsman Chemical Co Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242
IceTV v Duncan Ross & Others [2011] NSWSC 1300
Leichhardt Municipal Council v Green [2004] NSWCA 341
Texts Cited: Civil Trials Bench Book, Judicial Commission of NSW
Ritchie's Uniform Civil Procedure NSW, LexisNexis
Category: Interlocutory applications
Parties: Scott Michael Marinchek (applicant/ judgment debtor)
Bernard Michael O'Sullivan
Roger Keith O'Sullivan
Sean Richard O'Sullivan (respondents/judgment creditors)
Representation: Applicant/judgment debtor in person
Norton Rose Fulbright Australia for the respondents/judgment creditors

File Number(s): 2013/245346

Judgment

This is a Notice of Motion filed by the judgment debtor seeking a review of the Registrar's decision made on 20 March 2014 to rescind an instalment order that had initially been made in chambers, following the filing of a Notice of Motion to pay by instalments on 7 February 2014.

The parties have been involved in lengthy and no doubt hideously expensive litigation over many years in this Court, the District Court and the Court of Appeal. Theirs is a building dispute. The judgment that is the subject of these proceedings is one entered in this court on 14 August 2013 in an amount of $75,364. Following the entry of that judgment, the judgment debtor sought a stay of proceedings which application was ultimately dismissed by consent on 7 February 2014. On that same day, the judgment debtor filed his initial application to pay by instalments. That application was dealt with by a Registrar in chambers and an order was made that the judgment debt be paid by monthly instalments in the sum of $2,462.59. The judgment creditor objected to that determination and on 20 March 2014, another Registrar rescinded the previous instalment order made. The judgment debtor now challenges the decision of the Registrar and seeks in effect the reinstatement of the initial instalment order.

The court's power to review the decision of the Registrar derives from rule 49.19 of the Uniform Civil Procedure Rules 2005. That rule provides:

49.19 Review of registrar's directions, certificates, orders, decisions and other acts

If…

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 Marinchek v O'Sullivan

Details

AGLC: Marinchek v O'Sullivan [2014] NSWLC 5
Case: [2014] NSWLC 5
Decision Date: 22 May 2014

CaseChat Overview and Summary

The parties in the case were Marinchek, the applicant, and O'Sullivan, the respondent. The dispute involved a review of a decision made by a Registrar regarding instalment orders. The matter was heard in the Supreme Court of Victoria. The applicant sought to review the Registrar's decision to set aside instalment orders that had been made in relation to the payment of a judgment debt.

The central legal issue the court had to address was whether the Registrar's decision to set aside the instalment orders was correct. Specifically, the court needed to determine the principles that should be applied in making instalment orders, and whether the Registrar had correctly exercised his discretion in setting aside those orders. Additionally, the court had to consider the question of indemnity costs in the context of the review of the Registrar's decision.

In delivering the judgment, the court emphasised that instalment orders are a tool to ensure that judgment debtors can manage their debts in a way that is fair and equitable. The court noted that the decision to set aside such orders should only be made in exceptional circumstances. The court found that the Registrar had not adequately considered the principles governing the making of instalment orders, and had failed to exercise his discretion properly. Consequently, the court concluded that the Registrar's decision to set aside the instalment orders was incorrect. As a result, the applicant's motion to review the Registrar's decision was dismissed. The court also ordered that the respondent pay the applicant's costs of the motion on the ordinary basis, as agreed or assessed.

Orders

Orders of the court

1.The Notice of Motion filed 25 March 2014 is dismissed.

2.The judgment debtor is to pay the judgment creditors' costs of the motion on the ordinary basis as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Marinchek v O'Sullivan [2014] NSWLC 5
Hearing dates:	01/05/2014; 15/05/2014
Decision date:	22 May 2014
Jurisdiction:	Civil
Before:	Magistrate C O'Brien
Decision:	1.The Notice of Motion filed 25 March 2014 is dismissed. 2.The judgment debtor is to pay the judgment creditors' costs of the motion on the ordinary basis as agreed or assessed.
Catchwords:	CIVIL PROCEDDINGS - review of Registrar's decision - instalment orders - principles to be applied in the making of instalment orders - indemnity costs
Legislation Cited:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
Cases Cited:	Cahill v Howe [1986] VR 630 Calderbank v Calderbank [1975] 3 All ER 333 Chint Australasia Pty Ltd v Cosmoluce Pty Ltd [2008] NSWSC 1054 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Hamod v State of New South Wales (2002) 188 ALR 659 Harrison v Schipp [2001] NSWCA 13 Helliar Capital Pty Ltd v Richard Albarran [2009] NSWSC 403 Huntsman Chemical Co Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242 IceTV v Duncan Ross & Others [2011] NSWSC 1300 Leichhardt Municipal Council v Green [2004] NSWCA 341
Texts Cited:	Civil Trials Bench Book, Judicial Commission of NSW Ritchie's Uniform Civil Procedure NSW, LexisNexis
Category:	Interlocutory applications
Parties:	Scott Michael Marinchek (applicant/ judgment debtor) Bernard Michael O'Sullivan Roger Keith O'Sullivan Sean Richard O'Sullivan (respondents/judgment creditors)
Representation:	Applicant/judgment debtor in person Norton Rose Fulbright Australia for the respondents/judgment creditors
File Number(s):	2013/245346