National Australia Bank Ltd v Peters

[2005] QDC 204

[2005] QDC 204

DISTRICT COURT
CIVIL JURISDICTION

JUDGE ROBIN QC

No BD3956 of 2004

NATIONAL AUSTRALIA BANK LIMITED	Respondent/Plaintiff
(ACN 004 044 937)
and
STEVEN JOHN PETERS	Applicant/Defendant
BRISBANE ..DATE 15/06/2005
ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 800, r 868, r 869 conditions of fortnightly instalments being paid by judgment debtor to judgment creditor imposed on order for a further adjournment (for 40 days), while a stay continued to operate, so as to prevent the creditor's bankruptcy notice from producing an act of bankruptcy - purpose of adjournment was to allow the parties time to prepare further material invited by the Judge who had imposed the stay.

WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings.

15062005 T16-17/PMD25 M/T CMS67/2005 (Robin DCJ)

HIS HONOUR: This is an application by a judgment debtor who	1
suffered a judgment of $206,168.38 on 21st March 2005 pursuant to an order for summary judgment made by Judge O'Sullivan for a stay or enforcement of the judgment under UCPR Rule 800, it also seeks in the alternative an instalment

10

payments enforcement warrant under Rule 868.

The application came before Judge Griffin SC on the 24th of
May of this year when, the Court is told today, his Honour

expressed tentative views that the defendant had shown or

20

might be able to show what was a necessary to obtain relief.
He adjourned the matter so that the defendant could prepare
proper material to indicate the reality of proposals being
made to get the judgment satisfied, at least in part, and to

show that the plaintiff bank had received and given

30

consideration to the defendant's proposals. His Honour
ordered, according to the order sheet which is all the Court

has to go on, that:

"1. The matter be adjourned to 7 June 2005.

2. The order of execution of the judgment be stayed

until further order of this Court.

No order as to costs." 40

There is also in the file on the bank's solicitor's blue note paper headed "file note" a slightly different form of order which the parties, in discussions, had contemplated might be made. That in terms referred to the plaintiff filing an

50

affidavit by a proper officer setting out its response to the
defendant/applicant's affidavit and statement of financial
position. The matter did not proceed on the 7th of June. I
am told from the Bar table today that because the defendant's
15062005 T16-17/PMD25 M/T CMS67/2005 (Robin DCJ)

legal representatives could not appear, it came on today	1
instead.
Mr Seccombe, appearing for the defendant asks for an adjournment for a couple of weeks to permit further material

10

to be provided by the defendant - likewise, for material from
the plaintiff of the kind contemplated to be provided. That
is resisted by the bank which wishes to be free to pursue the
defendant in bankruptcy. An act of bankruptcy would have been

committed shortly after the 24th of May this year, but for

20

Judge Griffin's order.

The time that has passed has been used up by the parties' legal representatives in seeking an agreed resolution of matters, but without success. It seems that the defendant may

30

have an opportunity of a third party providing $15,000 on the
basis that it will be eroded by being first applied towards
his legal expenses. It rather seems that whatever part of
that may be available to the plaintiff is to be offered in

full satisfaction of the judgment amount. One would not

40

expect the bank to be particularly attracted to that offer.
It has, in correspondence dated the 31st of May this year,
indicated willingness to receive the $15,000 by 26 fortnightly
instalments of $576.92 each commencing on the 6th of June

2005, the payments not to be regarded as full satisfaction of

50

the judgment.

The judgment must be taken as it is. The Court notes Mr
Seccombe's assertion that the defendant was advised there were
15062005 T16-17/PMD25 M/T CMS67/2005 (Robin DCJ)

prospects of a defence but he elected not to pursue them. He	1
says he is desperate to avoid becoming bankrupt because he will lose his employment which, rather oddly, is as a financial adviser. He seems to think he has no other prospect of gainful employment. It does not seem that the employment

10

which he has is generating sufficient to pay anything off
against the judgment. But, I suppose, it has to be
acknowledged that he has legal costs of his own to meet for

the moment.

20

The Court lists are such that there is no time available before an Applications Judge until next month.

Judge Griffin is Applications Judge in the last week of July.

I have formed the judgment that his Honour, having taken the

30

attitude which was reported on the 24th of May this year, the
Court has become committed to entertaining the application
with the defendant putting his best foot forward, so to speak,

presenting the best case he can.

40

I accept from Mr Seccombe that that cannot happen today. I also note in that connection the assertion or the statement of Mr Duffy made on behalf of the bank that it accepts that the proposal to put up the $15,000, subject to the depredations of the costs obligations, is genuine, that the defendant has no

50

need to establish that it is.

If there has to be an adjournment, as I think there has to be,
for a longer duration than is sought, I think it is only
15062005 T16-17/PMD25 M/T CMS67/2005 (Robin DCJ)

sensible to have the matter returned before Judge Griffin,	1
which I understand to be the defendant's preference.
The plaintiff, of course, resists any adjournment and wishes to see the stay which remains in place removed. In my opinion

10

the adjournment ought to be accompanied by some mark of good
faith from the defendant by some gesture of attempting to get

the judgment satisfied, at least in part.

Rule 868 makes it very clear that if it is availed of

20

instalment arrangements may be set aside or varied at any time
- see subrule (3)(b). As Mr Duffy says, there are certain
difficulties posed by rule 869 today, which requires matters
to be considered about which the Court lacks full information;

he sought to discourage the Court from making any order under

30

rule 868, although the express flexibility of that rule would,
one would think, be more attractive to the plaintiff than a
stay of the kind presently in place, which effectively runs

until the plaintiff can do something about removing it.

40

It ought to be made clear that Mr Seccombe has made no representations whatever to the effect that his client can meet instalments that might be ordered on any basis other than that under which the defendant's supporter would provide the sum indicated, which appears to me involves the plaintiff

50

having agreed to or being put in a position where that is all
that it will get against the judgment. Mr Seccombe may not
have conceded that instalments can be ordered on the
application under rule 800 subrule (1)(b).
15062005 T16-17/PMD25 M/T CMS67/2005 (Robin DCJ)

If they are ordered, then Judge Griffin on the 25th of July	1
will have the advantage of knowing whether the defendant has or has not been able and/or willing to meet them. That may be regarded by him as useful information. I think if this indulgence to a judgment debtor is to be granted it is

10

reasonable to attach terms.

Really, what the defendant seeks is somewhat radical. He wants the Court to adopt his view of commercial realities and where the plaintiff's best interests really may lie, which as

20

he would have it represent the acceptance of a tiny fraction
of the judgment debt. The defendant and Mr Seccombe may be
right, that that represents more than would be available than
a bankruptcy. It might be surprising if the bank shared that

approach and the Court, so far as I am aware, has no ability

30

to force the bank to take a composition, although of course it
can delay it by orders under rule 868, et cetera.

The orders will be "(1) Adjourn the defendant's application to the 25th of July 2005;

40

(2) Order that the defendant pay the plaintiff's costs thrown

away by the adjournment to be assessed on the standard basis;

(3) Order that during the adjournment period fortnightly

50

instalments of $572.90 be paid against the judgment amount
commencing the 1st of July 2005, the continuation or otherwise
of that part of this order to be reviewed on the 25th of July
2005."
15062005 T16-17/PMD25 M/T CMS67/2005 (Robin DCJ)

I have revised what I propose downwards. That is, two	1
instalments have to be got at the moment, not three.
...

10

HIS HONOUR: This order does not affect the stay ordered by

Judge Griffin on the 24th of May.

...

20

-----

30

40

50