Re the Adoption of AJH

[2017] NSWSC 751

Supreme Court

New South Wales

Medium Neutral Citation:	Kearney v 2HD Broadcasters Pty Ltd t/as 1143 2HD and Radio New FM [2017] NSWSC 751
Hearing dates:	9 June 2017
Date of orders:	09 June 2017
Decision date:	09 June 2017
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Leave be granted for Stacks Goudkamp Pty Ltd (ACN 104 796 394) to enforce the judgment pursuant to Rule 39.1(1) of the Uniform Civil Procedure Rules 2005 (NSW).  2.   The judgment creditor in paragraphs 2 and 3 of the orders made on 27 July 2012 be amended to Stacks Goudkamp Pty Ltd (ACN 104 796 394).
Catchwords:	JUDGMENTS – enforcement – assignment of judgment creditor’s rights – whether assignment perfected – whether requirements of r 39.1 complied with
Legislation Cited:	Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Uniform Civil Procedure Rules 2005 (NSW).
Cases Cited:	Kearney v 2HD Broadcasters Pty Limited t/as 1143 2HD [2012] NSWSC 321
Category:	Procedural and other rulings
Parties:	Stacks Goudkamp Pty Ltd (Applicant) Craig Stephens (Respondent)
Representation:	Counsel: R Lam (Applicant) No appearance (Respondent)   Solicitors: O’Neill Partners (Applicant) Unrepresented (Respondent)
File Number(s):	2010/329085

Judgment

1. On 27 July 2012, I gave judgment in this matter in favour of 2HD Broadcasters Pty Ltd, the defendant herein against the cross-defendant: Kearney v 2HD Broadcasters Pty Limited t/as 1143 2HD [2012] NSWSC 321. The amount of the judgment with interest to 4 May 2007 was $47,518.28.

2. Stacks Goudkamp, the present Applicant before me, were the solicitors who acted for 2HD Broadcasters in those proceedings. On 10 August 2016, 2HD Broadcasters and Stacks Goudkamp entered into a deed of assignment and release. Under that deed, 2HD assigned to Stacks Goudkamp its rights against the cross-defendant.

3. On 5 May 2017 and in compliance with section 12 of the Conveyancing Act 1919 (NSW), a Notice of Assignment was sent to the cross-defendant. That Notice also stipulated that the amount the subject of the assignment was now due and payable to Stacks Goudkamp within ten days of the date of the notice.

4. The evidence discloses that the debt was not paid to Stacks Goudkamp and it is in those circumstances that, by an Amended Notice of Motion filed 26 May 2017, Stacks Goudkamp seek leave under r 39.1 Uniform Civil Procedure Rules 2005 (NSW) to execute and enforce the judgment. They also seek that the judgment creditor in the orders made on 27 July 2012 be amended to Stacks Goudkamp Pty Ltd, pursuant to section 135(1) of the Civil Procedure Act 2005 (NSW).

5. Rule 39.1(3) sets out the matters which must be proved on any such application. The evidence satisfies me that the Applicant is entitled to proceed to execute on the judgment and that that occurs by reason of the deed of assignment. There must be proof that the person against whom execution is sought to be issued is liable to execution and that is proved by the section 12 notice.

6. There must be evidence if it is a judgment for the payment of money as to the amount due on the date of the Motion. Such amount is proved in the affidavit of Tom Goudkamp sworn 6 June 2017.

7. There must be evidence, if sub-rule 3(a) is applicable, as to the change that has taken place entitling the present Applicant to enforce the judgment. Proof has been duly made by the deed and the section 12 notice in that regard.

8. Finally, if the judgment is one for money, there must be evidence that a demand has been made to satisfy the judgment and it has not been satisfied. I am satisfied from the demand in the section 12 notice and from Mr Goudkamp's affidavit that the money has not been paid in response to the demand.

9. In those circumstances, I make these orders:

1. Leave be granted for Stacks Goudkamp Pty Ltd (ACN 104 796 394) to enforce the judgment pursuant to Rule 39.1(1) of the Uniform Civil Procedure Rules 2005 (NSW).

2.   The judgment creditor in paragraphs 2 and 3 of the orders made on 27 July 2012 be amended to Stacks Goudkamp Pty Ltd (ACN 104 796 394).

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Decision last updated: 13 June 2017