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Padkohe Pty Ltd v Fletcher

Padkohe Pty Ltd v Fletcher

Case [2006] NSWSC 1239 21 November 2006

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CITATION: Padkohe Pty Ltd v Fletcher [2006] NSWSC 1239

HEARING DATE(S): 17/11/06

JUDGMENT DATE :
21 November 2006

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: Stay of execution of judgment refused

CATCHWORDS: PROCEDURE - judgments and orders - execution of judgment - where one plaintiff has money judgment against two defendants - where in each of two other proceedings one of those defendants obtained a costs order against plaintiff - where costs not quantified in either case - whether execution of judgment by plaintiff should be stayed

LEGISLATION CITED: Civil Procedure Act 2005, ss.21, 96, 135

CASES CITED: Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd (2006) 58 ACSR 22
Re A Debtor No 21 of 1950 [1951] Ch 612
Stooke v Taylor (1880) 5 QBD 569
Widgery v Tepper (1877) 6 ChD 364

PARTIES: Padkohe Pty Limited - First Plaintiff
Davis Davis - Second Plaintiff
Deborah Jayne Fletcher - First Defendant
Tatlers.Com.Au Pty Ltd - Second Defendant

FILE NUMBER(S): SC 5298/05

COUNSEL: Mr E.A.J. Hyde - Plaintiffs
Mr M.K. Condon - Defendants

SOLICITORS: Malcolm Johns & Company - Plaintiffs
Sage Solicitors - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

TUESDAY, 21 NOVEMBER 2006

5298/05 PADKOHE PTY LIMITED & ANOR v DEBORAH JANE FLETCHER & ANOR

JUDGMENT

1 The defendants (Ms Fletcher and a company I shall refer to as “Tatlers”) apply by notice of motion for an order staying until further order execution of a judgment entered against them in these proceedings on 8 May 2006.

2 The background circumstances are uncontroversial and may be stated relatively briefly:

1. By their statement of claim, the plaintiffs (Padkohe and Mr Davis) sought various relief against Ms Fletcher and Tatlers based on allegations about beneficial ownership of a leasehold and other assets related to an entertainment business. The claims were defended.

2. On 2 May 2006, the solicitors for the parties signed terms of settlement providing, so far as is relevant, as follows:

“The parties agree to settle the proceedings on the following terms:

1. Verdict and judgment for the Second Plaintiff [ie, Mr Davis] against the Defendants [Ms Fletcher and Tatlers] in the amount of $75,000.00 and the return of the items referred to in the schedule to the Statement of Claim as numbered 18, 34, 35, 47, 48, 49 and 50.

2. The payment of the verdict and payment of the items to take place within 28 days of today.”

3. Orders of the court were made on 5 May 2006 and entered on 8 May 2006. The first and sixth orders were:

“1. a verdict and judgment be entered for the Second Plaintiff for $75,000.00.

…

6. execution of the judgment referred to in Order 1 be stayed for 28 days from the date hereof.”

4. On 13 June 2006, the court made, upon an ex parte application of Ms Fletcher and Tatlers (judgment debtors), an instalment order in respect of the judgment debt. The effect…

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 Padkohe Pty Ltd v Fletcher

Details

AGLC: Padkohe Pty Ltd v Fletcher [2006] NSWSC 1239
Case: [2006] NSWSC 1239
Decision Date: 21 November 2006

CaseChat Overview and Summary

Padkohe Pty Ltd, a plaintiff, sought to enforce a judgment against two defendants. The judgment was made in proceedings where Padkohe was awarded money against the two defendants. Independently, each of the two defendants had obtained a costs order against Padkohe in separate proceedings. However, the costs were not quantified in either case. The issue before the court was whether the plaintiff should be allowed to enforce the judgment against the defendants despite the existence of the unquantified costs orders.

The court considered the nature of the unquantified costs orders and the implications for the enforcement of the judgment. It was noted that the defendants had not provided any evidence to substantiate the amounts of the costs orders, nor had they sought to quantify these costs. The court reasoned that since the costs were not quantified, they could not be considered a bar to the execution of the judgment. The court held that the existence of unquantified costs orders did not prevent the plaintiff from enforcing the judgment against the defendants.

The court concluded that the plaintiff could proceed with the enforcement of the judgment. It ordered that the defendants were to pay the judgment debt to the plaintiff. The court did not stay the execution of the judgment due to the unquantified costs orders. The final orders were that the defendants were to pay the judgment debt to Padkohe Pty Ltd, and the enforcement of the judgment was not to be stayed.

Orders