Mavidis v Wells and Neilson
[2017] VCC 81
•10 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised |
Case No. CI-15-01741
| Alex Mavidis | Plaintiff |
| v | |
| David Wells and Valerie Neilson | Defendant |
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JUDGE: | Lewitan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 February 2017 | |
DATE OF JUDGMENT: | 10 February 2017 | |
CASE MAY BE CITED AS: | Mavidis v Wells and Neilson | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 81. | |
REASONS FOR JUDGMENT
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Subject:Application for instalment order; section 6 Judgment Debt Recovery Act 1984
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Klotz | Fleming & Rhodes Lawyers |
| For the Defendants | No appearance by defendants |
HER HONOUR:
1 On 10 November 2016 David Wells & Valerie Neilson (the judgment debtors) made an application to the Registrar for an order for payment of a judgment debt dated 7 September 2015 by instalments.
2 The judgment debtors applied for an order for the payment of the sum of $330,020.70 by 83 monthly instalments of $4000 starting on 8 December 2016.
3 On 29 November 2016 the Deputy Registrar refused the application by the judgment debtors “for an order that the judgment debtors pay by instalments $330,020.70 being the sum owing under a judgment for the judgment creditor against the judgment debtors dated 7 September 2015.”
4 On 1 December 2016 the judgment debtors filed a Notice of Objection dated 30 November 2016 to the order the Deputy Registrar made on 29 November 2016 refusing an application made by the Judgment Debtors to pay the judgment of $330,020.70 by instalments.
5 This is a hearing de novo.
6 The Notice of Objection provides:
TAKE NOTICE that David Wells & Valerie Neilson (the Default Judgement Debtors) of 19 Hatteras Court Patterson Lakes 3197 hereby object to the refusal of the Order by the Deputy Registrar for Payment of the Judgement Debt by Instalments on 29th November 2016 as per our application to pay by instalments made on the 10th Day November 2016 and refer to our previous original Affidavits with attached evidence regarding the Plaintiff’s false affidavits relied on and our last three emails to County Court Directions Group 28th & 29th November with all their attached files background and evidence of our ability to at least maintain payments if not retire any debt outstanding completely within 12 months notwithstanding the terrible effect this matter and actions of the Plaintiff and Agents had on our health.
Our 3 supporting emails 28/29th November contain further information background and photographic evidence regarding Plaintiffs blatantly false affidavits they used in this matter where they have committed Perjury and those false affidavits have been allowed to stand and have not been investigated and further extensive photos and evidence in support of our application clearly show the Plaintiffs first and second affidavits to be blatantly false and seriously misrepresent the shocking condition we received the house in the day after settlement that has had an incredibly serious affect on our health, our work and ability to function and respond to this matter yet those affidavits are still being relied on by the County Court as representing the facts in this blatant fraud committed by the Plaintiff and his Agents O’Brien R/E Chelsea who falsely used a dummy bid and inflated price we had to pay for our security.
The solicitors we appointed to act at the time (I was seriously incapacitated) failed to act as instructed on this (and other matters) and have been removed and reported to the Legal Services Commissioner: Case Number COM-2016-1290 (evidence our security is critical attached to emails 28/29th Nov 2016).
The Plaintiff’s agents O’Brien R/E Chelsea are being reported to the REIV and Consumer Affairs for prosecution for fraudulently misrepresenting the property we bought and falsely inflating the price we had to pay by approx. $350,000, deliberately defaulting on our pre settlement inspection by giving keys to the property back to Plaintiff in Hastings after seeing condition of house a week before settlement.
We therefore seek an instalment order that we can manage while the above matters, fraud and false affidavits are investigated and the Plaintiff’s Agents are prosecuted for their handling of this matter &/or the default judgement be set aside &/or the Plaintiffs warrant of execution is stayed until further order. (emphasis mine).
7 I have read the three emails forwarded to the County Court Directions Group on 28 and 29 November 2016 and the files attached to those emails. In the email dated 28 November 2016 to Cassandra Cabezas (Acting Self-Represented Litigant Coordinator, County Court of Victoria), Mr Wells stated:
Hi Cassandra,
Was concerned on reading our current application that it only showed Val’s income/financials which by themselves would show the payments to be a struggle (sure we would have managed somehow but not obvious).
I believe the Court should be aware of what I am doing, some background into the difficulties we had, the history of what happened, the cause of my condition, money we are owed and substantial claims we have against others.
I also believe the Court should investigate the blatantly false affidavit of Mavidis/Fleming used to mislead the court into the condition of the house and the incredible circumstances leading up to the settlement.
In their second affidavit they even attempted to cover up parts of what they swore in their first affidavit by fabricating evidence to prove the house had been professionally cleaned (which photos clearly destroy that claim).
To really make it worse for themselves they even swore we inspected the house with the Vendor and a building inspector two days before settlement and the house was immaculate (not been there since August 2014).
A quick look at the photos we took the day after settlement shows how bewildering and blatantly false their affidavits were (had my health not been so genuinely bad none of this could have happened).
Although I had not been well in the lead up to the settlement I deteriorated rapidly after we eventually moved in as I tried to make good the terrible condition of the house so we could start work again. (many of the photos we took of the shocking condition of the house after we first got access the day after settlement were attached to my first affidavit).
Although stressed to the MAX (as usual) have also made progress on setting up our E- Commerce Web site which is ready to be loaded but just no time at moment but should be ready in about two weeks.
Our old Aladdin’s Cave (ACG) web site is still live but can’t sell from it –
new web site that will be active shortly will start to produce an income in about 2/3 weeks – wwwaladdinscavegallery.com.au (but not accessible til loaded)
Will attach our last nine years of ANZ trading figures based entirely on just our Bank statements to show what should at least be possible (all available). (we averaged approx. $230,000 PA for none years with no active web site or promotions, no advertising and only open part time).
At the bottom of page two of the above income statement attached is a reference to two of the specific claims of which the Respondents have no defence but we have not been able to follow up on until now.
I would expect the results of both matters which are well documented and photographed to result in settlements of approx. $300,000 Plus each as they have no possible defence just legal trickery to avoid lodging a defence).
….
8 The application was listed for hearing before Judge Macnamara on 27 January 2017. On that day the defendant, Mr David Wells, appeared in person. Judge Macnamara adjourned the applicant/defendant’s application to 10 February 2017 before the Commercial Division Duty Judge and ordered the applicant/defendant to pay the costs of the adjournment fixed in the sum of $2500 such costs to be paid by 10 February 2017.
9 The applicant/defendant was warned that no further adjournments would be granted.
10 The applicant/defendant has since forwarded two emails seeking an extension of the hearing and an order that the matter be referred to mediation. Having considered the matters referred to in the emails, I refuse the defendants’ application for an adjournment. The judgment debtors have failed to pay the costs of $2500 by 10 February 2017. Further the first defendant failed to appear at the hearing of this matter on 10 February 2017 after he was warned that no further adjournments would be granted.
Background to the proceeding
11 Alex Mavidis (Mavidis) made a contract dated 8 July 2014 with David Wells (Wells) to sell to him the property situated at 19 Hatteras Court, Patterson Lakes in the State of Victoria, being the land more particularly described in Certificate of Title Volume 10515 Folio 536 (the property).
12 Wells was not able to settle on the agreed date specified in the contract or on subsequent dates agreed between the parties. On 12 December 2014 the parties settled the contract on the basis that title would be transferred with a balance of the purchase price in the amount of $354,762.52 to be paid by 31 March 2015. Title to the property was transferred to Valerie Candy Neilson (Neilson) who had been nominated under the contract by Wells.
13 The judgment debtors failed to comply with the agreement and did not pay the balance of the contract price. Of the balance, the judgment debtors paid $27,000 to Mavidis.
14 The proceeding was commenced on 14 April 2015 seeking payment of the amount then outstanding taking into account interest that had accrued. On 1 May 2015, R. B Flinders Lawyers filed and served a Notice of Appearance for the judgment debtors. Judgment was entered against the judgment debtors on 7 September 2015 in default of defence (the judgment).
15 Bankruptcy Notices were served on Wells and Neilson on 28 and 29 October 2015 respectively. They did not comply with such notices or make application to set them aside.
16 On 18 February 2016 a Warrant of Seizure and Sale (the Sheriff’s warrant) was issued by this Honourable Court against Neilson for the purpose of enforcing the judgment against the property.
17 The Sheriff has been unable to sell the property pursuant to the Sheriff’s warrant. The delay in execution of the Sheriff’s Warrant resulted from the judgment debtors making three unsuccessful applications to set aside the default judgment followed by an application for an order for payment of the judgment debt by instalments.
18 In Hellier Capital Pty Ltd v Albarran[1] McDougall J held that an instalment order ought not be made if the judgment debtor’s means are sufficient to enable him or her to pay the judgment debt immediately and in full. It is evident from the judgment debtor’s statement of financial situation that the judgment debtors own land at 19 Hatteras Court, Patterson Lakes with a net value of $650,000. There is ample equity owned by the judgment debtors in this asset such that execution of the outstanding sheriff’s warrant would enable payment of the judgment as a lump sum within a short period of time.
[1] [2009] NSWSC 403, [8].
19 The application for instalment order dated 10 November 2016 is that the amount of $330,020.70 be paid by 83 instalments of $4000 per month (effectively over nearly 7 years ending in 2023). There has been no allowance for interest. In the Judgment Debtor’s Statement of Financial Situation deposed by the judgment debtors, the judgment debtors depose to having a combined income of $68,000. Mr Wells says he has no income. They depose to weekly living expenses as being $1700 . That amounts to annual living expenses in excess of $88,000. The proposed instalments of $4000 per month would create an annual obligation of $48,000.
20 In the Notice of Objection dated 30 November 2016 Wells referred to the emails dated 28 and 29 November 2016 and the attached files as evidence of “our ability to at least maintain payments if not retire any debt outstanding completely with 12 months”.
21 In his email dated 28 November 2016 Wells referred to the following matters as evidence of his ability to maintain payments if not retire any debt:
(a) money owed to the judgment creditors and substantial claims the judgment debtors have against others (this includes a claim for $300,000 against their shop agents);
(b) the progress made by the judgment debtors in setting up their e-Commerce website which “will be active shortly and will start to produce an income in 2/3 weeks.”
22 The matters referred to in Well’s emails are speculative at this stage. In Davidson v Greedy[2] Mukhtar AsJ dealt with evidence that was of a similar nature and stated:
The Act does not contemplate “see-how-we-go” interim orders. The Act is concerned with judgment debt recovery.
[2] [2012] VSC 202.
23 Similarly in G and L Tierney Pty Ltd v Endos Pty Ltd (In Liq), Alexander William Moorby and Margaret Moorby[3] Southwell J refused to make an instalment order because he regarded “the proposal as one which is quite unrealistic, and based more on pious hope than reasonable expectation.” The issue is not one of indulgence to the judgment debtor. The issue is whether indulgence to the judgment debtor will enhance the prospects of full recovery by the judgment creditor.[4]
[3] Unreported (1991, Supreme Court) BC9100606.
[4]In the matter of Australian Institute of Fitness (VIC & TAS) [2016] NSWSC 1143 , [11].
24 As stated by Barrett AJA in In the matter of Australian Institute of Fitness (VIC & TAS)[5] :
While an instalment order obviously mitigates the severity of the situation in which the judgment debtor is placed, that is not the real issue. The principal concern, as I say, is to discover whether an instalment arrangement will be more conducive to the judgment creditor’s achieving payment in full in a reasonable time. The issue is thus not one of indulgence to the judgment debtor because the judgment debtor somehow deserves an indulgence. The issue is whether indulgence to the judgment debtor will enhance the prospects of full recovery by the judgment creditor.
[5] [2016] NSWSC 1143, [11].
25 I am not satisfied that the defendants have demonstrated that they will have the means to comply with the instalment proposal.
26 It is for those reasons that I have disallowed the judgment debtors’ application for payment of the judgment debt by instalments. I order that the application by the judgment debtors is refused and that the judgment debtors pay the plaintiff’s costs fixed at $2700.
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