Meat 2 Please v Manna - [2022] VSC 144

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

S ECI 2021 03736

MEAT 2 PLEASE PTY LTD (ACN 138 225 073)	Applicant
v
VINCENZO MANNA	Respondent

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2022
DATE OF JUDGMENT:	25 March 2022
CASE MAY BE CITED AS:	Meat 2 Please v Manna
MEDIUM NEUTRAL CITATION:	[2022] VSC 144

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COSTS – Judgment debt recovery – Review of instalment order granted to judgment debtor – Applicant objected to instalment order – Instalment order cancelled – Costs awarded on an indemnity basis – Cahill v Howe [1986] VR 630 – C Tina Pty Ltd v Barham-Floreani [2019] VSC 819 – Judgment Debt Recovery Act 1984 (Vic) s 6.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Officer
For the Respondent	Mr G Rossis

HIS HONOUR:

The parties to this proceeding occupy adjacent commercial premises in Keysborough. In December 2020, the respondent, Vincenzo Manna, commenced a proceeding in the Victorian Civil and Administrative Tribunal (VCAT) against the applicant, Meat 2 Please Pty Ltd (M2P), seeking relief in relation to M2P’s alleged use of the common area adjacent to the parties’ commercial premises.

Mr Manna’s application in VCAT was struck out on 8 June 2021. VCAT subsequently granted M2P’s application that Mr Manna pay a portion of its costs to be taxed in default of agreement. The parties were unable to agree on the quantum of costs; a taxation hearing occurred in the Costs Court on 7 December 2021. M2P was awarded its costs in the sum of $26,133.56, including the costs of the taxation (the judgment debt).

On 30 December 2021, Mr Manna filed an application under s 6 of the Judgment Debt Recovery Act 1984 (the Act) for an order that the judgment debt be paid by instalments. That application was granted by an Associate Justice[1] on 24 January 2022 and an order made that Mr Manna pay M2P the judgment debt in 26 monthly instalments of $1,005.14.[2] Consistent with the provisions of the Act, M2P was not on notice of Mr Manna’s application for an instalment order.[3]
[1]Pursuant to s 6(1) of the Act, application for an instalment order is made to ‘the proper officer of the court’. Rule 61.01 of the Supreme Court (General Civil Procedure) Rules 2015 defines an Associate Judge or a judicial registrar as being the ‘proper officer’ of the Court.
[2]The orders made by the Associate Justice also provided that: the first instalment be paid on 8 February 2022; the last instalment be paid on 8 April 2024; and that a further payment be made on 8 May 2024 in respect of the statutory interest accrued on the judgment debt.
[3]Pursuant to s 6(3) of the Act, an instalment order can be made without notice to the judgment creditor.

Section 6(5) of the Act permits a judgment creditor to lodge an objection to an instalment order. On 7…

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 Meat 2 Please v Manna

Details

AGLC: Meat 2 Please v Manna [2022] VSC 144
Case: [2022] VSC 144
Decision Date: 25 March 2022

CaseChat Overview and Summary

The matter involved Meat 2 Please as the applicant and Manna as the respondent. The issue at hand was the recovery of a judgment debt, specifically regarding an instalment order that had been granted to the judgment debtor, Manna. Meat 2 Please had objected to the instalment order, and subsequently, the instalment order was cancelled. The court was tasked with determining the appropriate costs to be awarded to Meat 2 Please in light of the successful objection.

The court examined the legal principles applicable to the assessment of costs in cases of judgment debt recovery, particularly focusing on the relevant sections of the Judgment Debt Recovery Act 1984 (Vic) and relevant case law. The court considered the precedent set in Cahill v Howe [1986] VR 630 and C Tina Pty Ltd v Barham-Floreani [2019] VSC 819, which provided guidance on the circumstances in which costs on an indemnity basis may be awarded. The court determined that, given Meat 2 Please's successful objection to the instalment order, it was appropriate to award costs on an indemnity basis, as per the statutory framework and established legal principles.

The court concluded that Meat 2 Please was entitled to costs on an indemnity basis due to the successful objection to the instalment order. The court acknowledged the importance of ensuring that the judgment creditor's rights were protected and that the procedural fairness of the process was maintained. The costs were to be determined in accordance with the provisions of the Judgment Debt Recovery Act 1984 (Vic) and the applicable case law.

The final orders of the court included the cancellation of the instalment order previously granted to Manna and the awarding of costs to Meat 2 Please on an indemnity basis. The judgment underscored the importance of procedural fairness and the protection of the judgment creditor's rights in the context of judgment debt recovery proceedings.

Orders