Re Owners Corporation No 1 PS332151B

[2020] VSC 811

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
ENFORCEMENT LIST

S ECI 2020 02080

IN THE MATTER OF AN APPLICATION BY OWNERS CORPORATION NO 1 PS332151B

BETWEEN:

OWNERS CORPORATION NO 1 PS332151B	Applicant
and
ALEX THEATRE HOLDINGS PTY LTD (ACN 611 505 581)	Respondent

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	4 December 2020
CASE MAY BE CITED AS:	Re Owners Corporation No 1 PS332151B
MEDIUM NEUTRAL CITATION:	[2020] VSC 811

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DEBT – Judgment debt – Notice of objection against refusal to make instalment order – Debt discharged at time of judgment – Costs – Judgment Debt Recovery Act 1984 (Vic) s 6.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	S Metaxas	Frenkel Partners Lawyers
For the Respondent	A Chalmers, solicitor	Chalmers Law – Commercial, Technology & Entertainment

HIS HONOUR:

1. The respondent is a judgment debtor under an order of the Victorian Civil and Administrative Tribunal made 22 January 2020 for payment to the applicant in the amount of $119,988.09 (‘the judgment debt’).

1. The respondent filed an application on 17 September 2020 to pay the amount of $125,996.94, comprising the judgment debt, costs and interest, by six monthly instalments of $5,000.00, with 5 October 2020 being the date of the first instalment, and payment of the balance outstanding on 5 April 2021, or an earlier date being seven days following the date of settlement of the sale of real estate which was the subject of the Owners Corporation fees which resulted in the judgment debt.

1. The application for payment of the judgment debt by instalments was dismissed by Matthews JR on 2 October 2020. On 15 October the respondent filed a notice of objection under s 6(5) of the Judgment Debt Recovery Act 1984 (Vic) (‘Judgment Debt Recovery Act’) and r 61.02(7) of the Supreme Court (General Civil Procedure) Rules 2015 in respect of the order of Matthews JR.

1. The respondent has now paid the judgment debt in full by a payment of $62,998.47 made on or about 15 October 2020, and payment of the balance outstanding on or about 27 November 2020.

1. The only issue remaining on the notice of objection is costs.

1. An application for payment of a judgment debt by instalments under s 6 of the Judgment Debt Recovery Act must specify the amount of and the times at which instalments are proposed to be paid.[1]  The proper officer of the Court dealing with such an application may either order that the judgment debt be paid by the instalments and at the time specified in the application, or refuse to make the order.[2] Either party to the debt may file a notice of objection to the determination of the proper officer.[3]

   [1]Judgment Debt Recovery Act 1984 (Vic) s 6(2).

   [2]Ibid s 6(3).

   [3]Ibid s 6(5).

1. Section 6(7) of the Judgment Debt Recovery Act provides that on a notice of objection

The court may–

(a)where the proper officer has refused to make an order under subsection (3)–

(i)order that the judgment debt or the balance of the judgment debt then owing to the judgment creditor be paid by the instalments and at the times specified in the order; or

(ii)refuse to make such an order; or

(b)where notice of objection to the order under subsection (3)(a) has been filed under subsection (5), confirm vary or cancel the order of the proper officer of the court–

and shall cause the judgment creditor and the judgment debtor to be notified accordingly.

1. In affidavit material in support of the notice of objection the respondent set out its new proposal to pay the judgment debt in the manner that has occurred.  The application to pay the judgment debt by instalments set out in the materials filed in support of the notice of objection is a new and quite different application to the original application made to Matthews JR.  If payment of the judgment debt, or part of it, remained outstanding when the matter came before me I may have determined that the respondent’s position amounted to an entirely new proposal for repayment, and on that basis should not be considered on the notice of objection.[4]

   [4]GFT Australia Pty Ltd v Moore (Supreme Court of Victoria, Gobbo J, 2 November 1992); Lewis v Leslie [2001] VSC 110; Victoria Pre Cast Pty Ltd v Papazisis [2003] VSC 208.

1. The notice of objection was set down for hearing before me in the Practice Court on 2 December 2020.  By the hearing date the judgment debt had been paid in full by the respondent in a manner which was not consistent with the original application for payment by instalments.

1. The respondent takes issue with the contents of an affidavit filed on behalf of the applicant setting out certain matters of background history.  Those matters, and the respondent’s response to them, do not directly bear on the outcome of the notice of objection.  Factual disputes as to matters of background therefore have limited relevance to the question of the costs of the notice of objection.

1. The manner in which the judgment debt was paid was materially different to the original instalment order application, which I may have concluded constituted an entirely new proposal which should not be considered by me on the notice of objection.  Further, the judgment debt was paid before the hearing date rendering the notice of objection nugatory.  In those circumstances I will dismiss the notice of objection and order that the respondent pay the applicant’s costs.