Power v Bassett - [2018] NSWSC 1266

Supreme Court

New South Wales

Medium Neutral Citation: Power v Bassett [2018] NSWSC 1266
Hearing dates: 14 August 2018
Date of orders: 14 August 2018
Decision date: 14 August 2018
Jurisdiction: Common Law
Before: Campbell J
Decision:
I refuse the order for payment by instalment

Catchwords: CIVIL PROCEDURE – Application for order for payment by instalment of judgment debt – whether an instalment order should be made - court’s discretion – financial restructure – earning capacity – suspended builder’s licence – amount offered – interests of justice
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 37
Cases Cited: Bendigo and Adelaide Bank Ltd v Young [2012] VCC 55;
Hellier Capital Pty Ltd v Richard Albarran [2009] NSWSC 403;
SRG Civil Pty Ltd v Brolton Group Ltd [2018] NSWSC 618
Texts Cited: Nil
Category: Procedural and other rulings
Parties: Bianca Power (Plaintiff)
Matthew Bassett (Defendant)
Representation:
Counsel:
M Klooster (Plaintiff/judgment creditor)
K McLean (solicitor) (Defendant/judgment debtor)
Solicitors:
K McLean (Defendant/judgment debtor)

File Number(s): 2018/176840

EX TEMPORE Judgment - Revised

I am dealing with an objection to an order made by the Registrar under r 37.3 of the Uniform Civil Procedure Rules 2005 (NSW) refusing the judgment debtor's application for an order that he pay the judgment debt by instalments. The judgment creditor opposes the making of any such order. The judgment creditors were the plaintiffs in civil proceedings in the District Court arising out of a building contract with the judgment debtor. The subject matter of the contract was the performance of works at their Seaforth home. The parties fell into dispute which was litigated in the District Court. The dispute was determined by reference out, and judgment was entered in favour of the judgment creditor for damages in the sum of $140,509. That judgment was entered on 26 October 2016.
Orders were entered on the judgment debtor's cross-claim and costs orders were entered in favour of the judgment creditors with an apportionment in favour of the judgment debtor in the sum $45,000. The judgment debtor disputed the costs which were then referred for assessment. The first instance assessor assessed the costs after allowing for the apportionment in the sum of $300,081.76 (including the costs of the assessment). Judgment was entered in that amount in this Court on 24 November 2017.
As he was entitled to do, the judgment debtor filed an application for review. The decision of the review panel is contained in a certificate of determination (“the certificate”) dated 5 May 2018 which was published on 22 May 2018. The outcome was little different, the judgment creditors costs were assessed at $299,772.07. I allow myself the observation that it is a regrettable feature of the conduct of civil litigation in this State that so often the costs of enforcing civil rights exceed, often by a large measure, what is at stake in the dispute. I make no criticism of the present parties. I simply make the comment.
Judgment was entered by the filing of the certificate…

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 Power v Bassett

Details

AGLC: Power v Bassett [2018] NSWSC 1266
Case: [2018] NSWSC 1266
Decision Date: 14 August 2018

CaseChat Overview and Summary

The case of Power v Bassett arose in the Federal Circuit Court, involving a dispute regarding the enforcement of a judgment debt. The plaintiff, Power, sought an order for the payment of the judgment debt by instalments from the defendant, Bassett, who had previously been ordered to pay a lump sum. The primary issue before the court was whether the defendant's financial circumstances warranted the making of an instalment order.

The legal issues the court needed to decide included the extent to which the defendant's financial situation, including the impact of a suspended builder’s licence on his earning capacity, could justify the granting of an instalment order. The court also had to consider the amount offered by the defendant towards the judgment debt and assess the overall interests of justice in making such an order.

In determining the application, the court considered the defendant's financial restructure and his capacity to earn income in light of the suspension of his builder's licence. The court recognised that the defendant's inability to earn a substantial income due to the suspension of his licence was a significant factor in his financial hardship. However, the court also noted that the defendant had made some payments towards the judgment debt and that the amount offered was relatively small in comparison to the total debt. The court concluded that while the defendant's situation was unfortunate, it did not sufficiently justify the making of an instalment order. The court held that the defendant's ability to earn income, albeit reduced, and the interests of the plaintiff in having the debt paid in full, weighed against the granting of an instalment order.

The court ultimately decided not to make an instalment order, dismissing the defendant's application. The plaintiff was thus entitled to enforce the original judgment debt without the need for instalments.

Orders