Mastrogiannis v Gomez
[2014] VCC 578
•5 May 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CIVIL DIVISION
Case No. C1-12-00794
| Anna Mastrogiannis | Judgment Creditor |
| v | |
| J Renee Nominees Pty Ltd and Kalaiselvi Gomez | Judgment Debtor |
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JUDGE: | Lewitan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 May 2014 | |
DATE OF JUDGMENT: | 5 May 2014 | |
CASE MAY BE CITED AS: | Mastrogiannis v Gomez | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 578 | |
REASONS FOR JUDGMENT
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Subject: Judgment debt – application for payment of judgment debt by instalments - Judgment Debt Recovery Act 1984.
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APPEARANCES: | Counsel | Solicitors |
| For the Judgment Creditor | Mr Sowden | Zervos Lawyers |
| For the Judgment Debtor | Mrs Gomez appeared in person |
HER HONOUR:
1 The judgment debtor, Kalaiselvi Gomez, has filed a Notice of Objection to an order of the Deputy Registrar made on 13 December 2013 refusing an application made by the Judgment Debtor to pay the judgment of $67, 851.73 by instalments.
2 On 1 November 2013 Judge Kennedy made the following orders:
1.The plaintiff’s claim against the first defendant is dismissed.
2.The plaintiff is to pay the first defendant’s costs of the plaintiff’s claim to be taxed on scale in default of agreement.
3.The plaintiff/first defendant by counterclaim and second defendant by counterclaim [Kalaiselvi Gomez] are to pay the first defendant/plaintiff [Anna Mastrogiannis] by counterclaim the sum of $67,000.
4.Kalaiselvi Gomez is to pay the plaintiff by counterclaim interest of $851.73.
3 Mrs Gomez made an application to the Registrar for order for payment of the judgment debt by instalments on 21 November 2013 and filed an affidavit as to her financial situation. Mrs Gomez sought to to pay the debt by 61 monthly instalments starting from 1 March 2014 until 1 March 2019. On 13 December 2013 the Deputy Registrar refused that application.
4 Mrs Gomez filed a Notice of Objection to the order of the Deputy Registrar on 13 January 2014. The objection was listed for hearing on 24 February 2014. On that day Judge Anderson made the following orders:
1.The hearing of the second judgment debtor’s objection to the order of the Deputy Registrar made on 13 December 2013 is adjourned for further hearing on 17 March 2014.
2.By 4pm on 10 March 2014, the second judgment debtor [Mrs Gomez] must file and serve an affidavit setting out further details of her financial position as follows:
a.in relation to each of the properties at 59 Hinrichsen Drive Hallam, 2 Hatherley Grove Altona North and Unit 368/135 Fitzroy Street St Kilda:
i.documents evidencing the current value of the property;
ii.documents, for example, bank statements evidencing the amount presently owed to any mortgagee;
iii.the interest of any other person in the property;
iv.any documents evidencing recent attempts to sell the property.
b. details of the financial position of the J Renee Family trust, including the beneficiaries of the trust and the assets and liabilities of the trust and any documents evidencing these matters;
c documents, for example bank statements, evidencing the deposits in bank accounts or a similar financial institution;
dany other asset or liability, which is not disclosed in the affidavit sworn 21 November 2013 filed in the proceeding.
3.The second judgment debtor [Mrs Gomez] must pay the judgment creditor’s costs of the adjournment fixed in the total sum of $1,100. Stay execution on the costs order for three weeks.
4.Reserve liberty to apply.
5 On 17 March 2014, Mr Tim Sowden of counsel appeared on behalf of the plaintiff. Ms Gomez did not appear. On that day Judge Macnamara made orders dismissing the proceeding and ordered Ms Gomez to pay the plaintiff by counterclaim costs fixed in the sum of $1100.
6 On 14 March 2014 Ms Gomez forwarded an email to the registrar stating that she was unwell. Ms Gomez did not forward a copy of this email to the plaintiff. As a result of the email forwarded by Ms Gomez to the Court on 14 March 2014, the Court vacated the order made on 17 March 2014 and adjourned the further hearing to 14 April 2014. The matter was again adjourned with the consent of both parties to 5 May 2014.
7 Mrs Gomez has filed two further affidavits made on 6 March 2014 in support of her application. The first affidavit relates to documents relating to J Renee Nominees Family Trust. Mrs Gomez states that there has never been any bank accounts under J Renee Nominees Family Trust.
8 Mrs Gomez included the following documents as exhibits to the second affidavit she made on 6 March 2014:
(a) rate notice for the property at 2 Hatherley Grove Altona North which indicates that the capital improved value of the property is $354,000.
(b) rate notice for 9 Hinrichsen Drive Hallam which indicates that the capital improvement value of the property is $372,00.
(c) rate notice for the property at Fitzroy Street St Kilda which indicates that the capital improved value of that property is $19,000.
(d) Westpac Equity Access Loan – Plan 2 which indicates that the closing balance of that statement is $311,410.34. All the other entries on that statement indicating the dates and amounts of moneys debited and credited from that account had been redacted.
(e) Westpac Equity Access Loan – Plan 2 which indicates a closing balance of $352,000. All the other entries on that statement indicating the dates and amounts of moneys debited and credited from that account had been redacted.
(f) An unidentified Westpac Bank Account .
(g) Some documents dated 14 March 2013 relating to the sale of the car park.
9 None of these documents reflect the affidavit made by Mrs Gomez on 2 November 2013 that her average pre-tax earnings for the last 12 months were $1600 per week. No documents were provided to substantiate her assertion that she receives $375 by way of board or rent.
10 Mrs Gomez referred to Hellier Capital Pty Ltd v Richard Albarran[1]. The facts in that case are different from the facts in this case. The applicant in Helllier provided Comprehensive financial evidence which was unchallenged and the debt would be paid in less than four years.
[1][2009] NSWC 403.
11 The Victorian position was considered In Ross William Davidson v Sharyn Greedy and Stephen Walters[2]. When considering a proposal to pay a judgment by instalments for a period of six years, Mukhtar AsJ stated:
The proposed payment of $200 per month would take six years to repay the judgment debt. But even then, his application did not take into account the interest accruing on the judgment debt under s.101 of the Supreme Court Act, which is presently at the rate of 10.5%.
[2][2012] VSC 202.
12 Mukhtar AsJ considered Cahill v Howe[3] and stated that
The accrual of interest means the judgment debt is ever increasing and when the Court comes to consider the appropriateness of making an instalment order, the Court has to be satisfied that the instalment amount being proposed by the judgment debtor not only covers the accruing interest but is of a reasonable amount to ensure that the judgment debt can be recovered within a reasonable time.
[3][1986] VR 630.
13 There was some debate about the value of the properties held by Mrs Gomez. However even the figures relied upon by Mrs Gomez in her second affidavit, indicate that she has a joint equity of $81,000 in the properties.
14 I also take into account the fact that Mrs Gomez has failed to pay the sum of $1100 which she was ordered to pay by Judge Anderson on 24 February 2014.
15 I have considered the submissions made by Mrs Gomez. She states that if the Court does not make the order, she will face bankruptcy which will cause considerable hardship to her family.
16 However the proposal put forward by Mrs Gomez would mean that the debt would not be repaid for 5 years. As interest at the rate of 11.5% would continue to accrue during that time, the debt would not be repaid at that rate for over six years. I am not satisfied that the instalment amount being proposed by Mrs Gomez is of a reasonable amount to ensure that the judgment debt can be recovered within a reasonable time.
17 Accordingly the Court refuses the application made by the judgment debtor, Mrs Gomez.
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