Michelmore v Brown [No 4]
[2025] WASC 133
•1 APRIL 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MICHELMORE -v- BROWN [No 4] [2025] WASC 133
CORAM: TOTTLE J
HEARD: ON THE PAPERS
DELIVERED : 1 APRIL 2025
FILE NO/S: CIV 2457 of 2023
BETWEEN: LAURA JANE MICHELMORE
Plaintiff
AND
ADAM SYDNEY BROWN
First Defendant
JERALD MARTIN
EMMA HAZEL MARTIN
Second Defendants
EMERSION PTY LTD as trustee for THE MARTIN TRUST
Third Defendant
Catchwords:
Practice and procedure - Judgments and orders - Enforcement - Order for appropriation of available asset for purposes of recovery of judgment debt - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA)
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr J O'Hara |
| First Defendant | : | No appearance |
| Second Defendants | : | In person |
| Third Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | In person |
| First Defendant | : | No appearance |
| Second Defendants | : | In person |
| Third Defendant | : | No appearance |
Case(s) referred to in decision(s):
Nil
TOTTLE J:
This judgment was delivered extemporaneously and has been edited from the transcript to correct matters of grammar and formatting, and to add full citations.
On 5 September 2024 the court ordered that the first named second defendant, Mr Martin, be restrained from disposing of or otherwise dealing with the sum of $150,000 standing to his credit in a bank account held in his name with Suncorp Bank Nofina Ltd (the Suncorp account). In effect the order replaced a freezing order made on 28 August 2024.
On 15 January 2025 the court ordered that judgment be entered in the plaintiff's favour in the sum of $90,000 together with interest on that sum at the rate of 3 per cent per annum from 31 July 2023 making a total of $93,950 (the judgment debt). Orders were also made providing for the defendants to pay the plaintiff's costs of the action. For reasons that are presently irrelevant, the quantum of the plaintiff's entitlement to costs has yet to be determined. When the costs are determined they will form part of the judgment.
The plaintiff asked Mr Martin to consent to an order permitting the release of funds from the Suncorp account to discharge the judgment debt and he refused.
On 4 February 2025 the plaintiff applied for an order for the release from the Suncorp account of an amount that would satisfy the judgment debt. At a hearing held on 6 February 2025 directions were given for the filing and service of submissions by the plaintiff and the second defendants and for the application to be determined on the papers. The plaintiff filed submissions but the second defendants did not.
On 21 March 2025 I made an order the effect of which was to vary the order of 5 September 2024 by directing Mr Martin to cause the judgment debt to be paid from the Suncorp account into an account in the name of the plaintiff. The parties were informed that reasons would be provided at a hearing fixed for today's date. These are those reasons.
The plaintiff's application was made under s 86 of the Civil Judgments Enforcement Act 2004 (WA) (the Act). Section 86 is found in Div 7 of pt 4 of the Act which is entitled 'Receivers and special remedies'.
Before turning to s 86 reference must be made to s 85 that provides:
85.Term used: available asset
In this Division —
available asset, in relation to a judgment debtor, means —
(a)the judgment debtor's legal or equitable estate or interest in any real or personal property; or
(b)the judgment debtor's interest in the property or profits of a partnership of which the debtor is a partner or in any other money that may be coming to the judgment debtor in respect of the partnership,
irrespective of whether the interest is held jointly or in common with another or others.
Section 86 provides:
86.Appointing a receiver, injunctions etc.
(1)If an available asset of a judgment debtor cannot be conveniently appropriated or realised under this Part for the purposes of recovering a judgment debt, whether due to acts or omissions of the judgment debtor or otherwise, the judgment creditor may apply to the court for any or all of the following —
(a)an order that determines the nature and extent of the asset;
(b)an order that appoints a receiver of the asset;
(c)an order that the judgment debtor or any person in possession or control of the asset —
(i)deliver the asset to a person named in the order;
(ii)do, not do, or cease from doing, any act that relates to the asset and that is specified in the order;
(d)an order that prohibits the judgment debtor or any other person from disposing of or otherwise dealing with the asset;
(e)an order that facilitates the appropriation or realisation of the asset.
(2)The court may make any such order, subject to section 87.
(3)The court may make any such order even if no other proceedings have been taken to enforce the monetary judgment concerned.
Section 86(2) is the source of the court's power to make an order under s 86(1) subject to s 87. Section 87 is a provision which regulates the power to appoint a receiver and has no relevance to the plaintiff's application.
I was satisfied of the following: (i) the funds held in the Suncorp account (though more accurately described as the debt due by Suncorp to Mr Martin) are an available asset of Mr Martin who is a judgment debtor; (ii) the funds cannot be conveniently appropriated or realised for the purposes of recovering the judgment debt because Mr Martin has refused to consent to an order releasing the funds; and (iii) it was in the interests of justice that an order be made directing Mr Martin to cause the funds required to pay the judgment debt to be paid out of the Suncorp account and into the plaintiff's account.
It is arguable that it was open to the plaintiff to apply for a debt appropriation order under s 49 of the Act. The plaintiff contends the debt due by Suncorp to Mr Martin was not an 'available debt' as that term is defined by s 46 of the Act as the existence of the order of 5 September 2024 meant that the debt could not be described as 'unconditional'. I have reservations about whether the 5 September 2024 order has the effect of making the debt due by Suncorp to Mr Martin conditional but be that as it may, there is no dispute that Suncorp is indebted to Mr Martin and, in the circumstances of this case in which the second defendants have either challenged or not consented to almost every procedural step the plaintiff has been obliged to take, there was no principled reason for the court to refuse to make an order under s 86 of the Act as sought by the plaintiff.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to the Honourable Justice Tottle
22 APRIL 2025
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