Pepper Finance Corporation Ltd v Wallace
[2015] WASC 191
•29 MAY 2015
PEPPER FINANCE CORPORATION LTD -v- WALLACE [2015] WASC 191
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 191 | |
| 29/05/2015 | |||
| Case No: | CIV:2205/2013 | 18 MAY 2015 | |
| Coram: | MARTINO J | 18/05/15 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | PEPPER FINANCE CORPORATION LTD IAN WALLACE CAROLYN MARGARET DEFREYNE RACHEL WALLACE |
Catchwords: | Practice and procedure Application for order suspending enforcement of judgement Turns on own facts |
Legislation: | Civil Judgments Enforcement Act 2004 (WA), s 15 |
Case References: | Boase v Asica Developments Pty Ltd [2009] WASC 183 Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 New Resource Holdings Pty Ltd and Lunt [No 3] [2008] WASC 221 Professional Services of Australia Pty Ltd v Computer Accounting & Tax Pty Ltd [2008] WASCA 222 Smolarek v Brian Keith McMaster [2006] WASCA 216 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
IAN WALLACE
First Defendant
CAROLYN MARGARET DEFREYNE
RACHEL WALLACE
Second Defendants
Catchwords:
Practice and procedure - Application for order suspending enforcement of judgement - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 15
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr R J Squires
First Defendant : Mr J A Robertson
Second Defendants : Mr J A Robertson
Solicitors:
Plaintiff : Jackson McDonald
First Defendant : William & Hughes
Second Defendants : William & Hughes
Cases referred to in judgment:
Boase v Asica Developments Pty Ltd [2009] WASC 183
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
New Resource Holdings Pty Ltd and Lunt [No 3] [2008] WASC 221
Professional Services of Australia Pty Ltd v Computer Accounting & Tax Pty Ltd [2008] WASCA 222
Smolarek v Brian Keith McMaster [2006] WASCA 216
- MARTINO J:
(These reasons were delivered extemporaneously on 18 May 2015 and have been edited from the transcript.)
1 The defendants apply by a chamber summons filed on 15 May 2015 for an order suspending the enforcement of a property seizure and delivery order. The matter has been listed this afternoon urgently at the defendants' request. In the course of submissions made on behalf of the defendants, I enquired whether s 15 of the Civil Judgments Enforcement Act 2004 (WA) (the Act) applied to the application, and counsel for the defendants informed me that it was.
2 It follows, therefore, that, in fact, what the defendants are seeking is an order suspending the enforcement of a judgment. In my view, nothing turns on the misdescription contained in the chamber summons, dated 15 May 2015. It is clear what the defendants are seeking.
3 The judgment was obtained on 16 September 2014 by consent and made by Master Sanderson.
4 It provided that there be judgment for the plaintiff and that the second defendants within 28 days of service of judgment deliver up to the plaintiff vacant possession of the property known as 19 Perth Street, Cottesloe, Western Australia, which is more particularly described as Lot 42 on Plan 343 and being the whole of the land in Certificate of Title volume 1865 folio 818.
5 I can see from the file that, on 8 May 2015, the plaintiff judgment creditor applied for a property seizure and delivery order specifying the property ordered to be seized and delivered, namely 19 Perth Street, Cottesloe, Western Australia, being Lot 42 on Plan 343 and being the whole of the land in Certificate of Title volume 1865 folio 818.
6 I cannot see that the property seizure and delivery order has yet been issued by the Court, and I am told by counsel for the plaintiff that it has not been received by his firm. In my view, nothing turns on that. It is the suspension of the enforcement of the judgment that the defendant applicants are applying for. The fact that the property seizure and delivery order has not yet been issued by the Court would not preclude them obtaining an order if it was warranted under s 15 of the Act.
7 All parties agree that the law is clear.
8 The principles which govern the exercise of the discretion under s 15 to suspend the enforcement of all, or part, of a judgment are not materially different from those which applied to an application for a stay of execution before the introduction of the Act.1 There is no fixed rules as to the facts which would constitute special circumstances which would warrant the making of such an order. Each case must be considered on its merits.
9 I must say, this case seems to me to be quite unusual and to have no merit at all. For that reason, although both parties at times during this hearing have requested an adjournment of the application, I am firmly of the view that there is no point in granting that adjournment, but that I should deal with the application now.
10 The circumstances are set out in the affidavit of the first defendant, which he made on 15 May 2005. He says in paragraph 7 of that affidavit that it appears that the plaintiff sued for possession of only Lot 42 and the plaintiff should have sued for possession also of Lot 40 and Lot 41. At the time that the first defendant instructed the defendant's lawyers to consent to judgment, neither he nor his lawyers noticed that the plaintiff had only sued for possession of Lot 42, as it was his intention to enter into the deed of forbearance, settlement and release, and comply with it.
11 He says that it would now be practically very difficult for the sheriff to execute the judgment under a property seizure and delivery order, because the house on the property is effectively over two of the lots, that is, Lot 41 and Lot 42. I accept that there are some practical difficulties that will need to be addressed. However, I cannot see that that is any reason why the property seizure and delivery order should not be made, or why the execution or enforcement of the judgment should be suspended.
12 The applicant also says that he has the property on the market, that he is applying for a bridging loan, and that one of the companies in which he has a significant interest is in the process of selling some land called the Beaconsfield Subdivision. He expects to receive funds to enable him to pay the moneys due to the plaintiff by 8 June 2015, from the sale of the Beaconsfield Subdivision if he has not obtained bridging finance by that date.
13 For the purposes of this application, accepting that payment of the moneys due is imminent, that does not seem to me to be a circumstance warranting suspension of enforcement of the judgment. As the affidavit of Mr Wallace makes clear in paragraph 9, he accepts that approximately $1.4 m is owing to the plaintiff.
14 For those reasons, I am not persuaded that it is appropriate to suspend enforcement of the judgment. I dismiss the application.
1Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203; Smolarek v Brian Keith McMaster [2006] WASCA 216; Professional Services of Australia Pty Ltd v Computer Accounting & Tax Pty Ltd [2008] WASCA 222; New Resource Holdings Pty Ltd and Lunt [No 3] [2008] WASC 221; Boase v Asica Developments Pty Ltd [2009] WASC 183.
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