Seferian v Owners Corporation PS4250828B
[2009] VSC 537
•17 NOVEMBER 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 9617 of 2009
| GARABED SEFERIAN | Plaintiff |
| v | |
| OWNERS CORPORATION PS4250828B | First Defendant |
| and | |
| COUNTY COURT OF VICTORIA AT MELBOURNE | Second Defendant |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 NOVEMBER 2009 | |
DATE OF JUDGMENT: | 17 NOVEMBER 2009 | |
CASE MAY BE CITED AS: | SEFERIAN v OWNERS CORPORATION PS4250828B | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 537 | |
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Practice and Procedure – Order in nature of certiorari sought to quash certificate of judgment entered in County Court of Victoria pursuant to order of the Victorian Civil and Administrative Tribunal – Certified copy not properly signed – First defendant conceded there was error of law on the face of the record – Whether discretion should be exercised to refuse order – Whether exercise in futility – Victorian Civil and Administrative Tribunal Act 1998, s.121.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Fried | The Law Offices of Barry Fried |
| For the First Defendant | Mr R.A. Heath | Schetzer Brott & Appel |
| For the Second Defendant | No appearance |
HIS HONOUR:
On 19 October 2009, the plaintiff issued an originating motion against the first defendant, Owners Corporation PS425082B and the County Court of Victoria, seeking a writ of certiorari in respect of a certificate of judgment entered in the County Court by the first defendant against the plaintiff on 21 September 2009.
The second defendant has filed an appearance but, in accordance with the principles in R v Australian Broadcasting Tribunal Ex Parte Hardiman,[1] is not taking any part in the proceeding.
[1](1980) 144 CLR 13, 35-36 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).
An appearance was entered on behalf of the first defendant and the parties came before an associate justice pursuant to the summons issued on the originating motion on 13 November 2009. The matter was referred to me because the first defendant, in an effort to short circuit the delays inherent in litigating the dispute through to trial, had conceded that there was an error of law on the face of the record but wanted to submit that the whole proceeding should be dismissed on the basis that, in the exercise of my discretion, the writ of certiorari should be withheld.
The starting point for this dispute is that, on 14 August 2009, the Victorian Civil and Administrative Tribunal (“VCAT”) made an order by consent that the respondent in the tribunal, who is the plaintiff before me, pay the applicant, the first defendant in this proceeding, the sum of $176,201.89. The second order by consent was that the orders were stayed until 14 September 2009 “to allow for negotiations between the parties as to payment”.
The first defendant obtained a certificate of that order from VCAT which was signed and stamped as follows:
I CERTIFY THAT THIS DOCUMENT IS A TRUE COPY OF THE ORIGINAL OF WHICH IT PURPORTS TO BE A COPY.
JIM NELMS, SENIOR REGISTRAR
DATE 8/9/2009.
The date for payment of the debt, namely 14 September 2009, having passed, and there having been no negotiations, the first defendant entered judgment in the County Court based on the certificate given by Mr Nelms. That judgment was entered on 16 September 2009 for the sum of $176,201.89.
A bankruptcy notice was then issued by the first defendant against the plaintiff on 21 September 2009 in respect of the judgment debt of $176,201.89 plus interest from the date of judgment to the date of the bankruptcy notice of $289.65.
The basis of the application by the plaintiff is that s.121 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”), which concerns the enforcement of monetary orders by VCAT, requires that the copy of the order filed in the appropriate court be certified as a true copy by a presidential member or the principal registrar. It will be recalled that the stamp on the document that I previously referred to described Mr Nelms as senior registrar. There is evidence before me that in fact on that date he was an acting principal registrar and therefore was entitled, under s.121, to sign the certificate. However, he was described incorrectly for the purposes of s.121 by reference to his position as senior registrar.
As I have said, the first defendant, in an effort to bring this proceeding to an end, has conceded that there is an error on the face of the record. It is therefore unnecessary for me to embark on a consideration of the interesting questions of whether the incorrect description of Mr Nelms’ position, when he was in fact on the date that he gave the certificate an acting principal registrar, was an error of law on the face of the record, and whether the certificate was part of the record.
It was agreed by both parties that the Court, in considering the old prerogative writs and their new form, has a discretion to withhold the relief sought, notwithstanding that a case may be made out. For example, in Mann v Medical Practitioners Board of Victoria,[2] Nettle JA said:
… prerogative relief in the nature of prohibition or certiorari does not lie as a right - it is discretionary - and the considerations which are relevant to the exercise of that discretion include the utility of the relief which is sought and the conduct of the applicant, as well as the public interest that there should be an end to litigation. {Citations omitted]
[2][2004] VSCA 148, [17].
Mr Heath of counsel, who appeared on behalf of the first defendant, submitted that there would be no utility in granting certiorari and therefore quashing the judgment of the County Court because the defendant already had a new certificate signed by Mr Nelms, in which he described himself in the correct capacity as an acting principal registrar of the tribunal. Pursuant to the new certificate, judgment could again be entered and fresh bankruptcy proceedings commenced. The parties would then be back in the position in which they are currently today, but at considerable cost to the first defendant, who perhaps through no fault of its own, has found itself in the situation where it has been accepted that there is an irregularity in the entry of judgment.
Mr Fried, the solicitor acting for the plaintiff, argued that the conduct of the plaintiff was not such that it should count against him in terms of the exercise of the discretion, and that he did stand to benefit from the writ of certiorari being granted, if that were the eventual decision, because, amongst other reasons, the date for the calculation of interest on the judgment would be about a month different and that the current bankruptcy proceedings would be brought to an end, and that would give the plaintiff further time in which to seek to be able to pay the outstanding debt.
Mr Heath stressed that this was a consent order in VCAT, so that there was no dispute about the amount of the debt. Indeed, there had been part payment of a sum of just over $6,000 made by the plaintiff. He submitted that all that would be achieved by refusing the first defendant's application would be to force the first defendant to take the same steps over again to reach the same result. That, it was said, was an exercise in futility in accordance with the principle outlined by Nettle JA.
Mr Heath further submitted that the part payment was, in effect, an acquiescence in the judgment, which was a disentitling factor in the exercise of discretion. What the plaintiff said in his further affidavit was:
On or about 11 November 2009 I paid by way of bank cheque to the first defendant's solicitor the sum of $6,202.89 as part payment of the sum claimed in the County Court certificate of judgment issued on 21 September 2009.
Equally, the plaintiff could have said that that sum was paid as part payment of the amount ordered to be paid by consent by the order of VCAT. I therefore do not consider that that part payment constitutes any acquiescence or adoption or acceptance of the County Court judgment. As Mr Fried pointed out, this proceeding was already on foot on the date of payment.
As I see the matter, there are good arguments going both ways. One readily understands the interest of the first defendant in submitting that this is a irregularity without any substance and that as nothing of substance would be achieved by not allowing the application for dismissal today, the Court should disregard the irregularity.[3]
[3]See, for example, National Australia Bank Limited v Meehan (VSC, App Div (Ormiston and O’Bryan JJ)) No. 8407/93, 24 February 1994, unreported, BC9400980; ANZ Banking Group Limited v Kostouski (VSC, Chernov J) No 5511/97, 2 July 1997, unreported, BC9703266; Commonwealth Bank of Australia Limited v Sky Empire Pty Ltd [2006] VSC 193 (Kellam J).
In support of that submission, Mr Heath referred me to a decision of the New South Wales Court of Appeal in Parkes Rural Distributions Pty Ltd v Glasson,[4] in which the judgment was given by Glass JA. Samuels and Priestley JJA agreed with his Honour. In that case, there was Commonwealth legislation providing for distributors of petroleum products to be given financial assistance so that when they sold their products in outlying areas, the price could be kept comparable to those charged in capital cities. In addition, s.8(3) of the Petroleum Products Subsidy Act 1965 (NSW) provided that an authorised officer could investigate payments and if satisfied that an amount paid under the Act was not payable to that person, or exceeded the amount that was payable to that person, the officer could give a certificate in writing that the amount paid or the amount of the excess, as the case might be, was repayable by that person to the State. In February 1982, a certificate under s.8(3) of the New South Wales Act was given, certifying that an amount of over $150,000 was repayable by the plaintiff to the State of New South Wales. Then in November 1984 there was a second certificate stating that an amount of just over $134,000 was repayable by the plaintiff to the State of New South Wales. Certiorari was sought against the two officers who had given those certificates.
[4](1986) 7 NSWLR 332.
The first certificate was set aside by the trial judge on the basis that the plaintiff had not been forwarded an adequate opportunity to be heard in relation to it. The second certificate had been issued without the provision of the certification about the place and date of all sales, which was required by cl.A4 of the Commonwealth scheme. It was therefore submitted that the second certificate was irregular, in that there had been a procedural irregularity. The trial judge dismissed that argument and refused to grant certiorari. That decision was the basis for one of the grounds of appeal.
Glass JA said:
… the failure to observe [the provisions of cl.A4] before the issue of the second certificate constituted a procedural irregularity in its administration. The trial judge held that the undoubted breach of procedure committed by the second defendant did not give the plaintiff a remedy if the grant of prerogative relief would be a futility.[5]
His Honour then referred to some authorities and continued:
It would be a futility to declare the second s.8(3) certificate void, for want of an A4 certificate which preceded it, since the A4 certificate which followed it could ground a third s.8(3) certificate. In my opinion relief was properly withheld on this ground.[6]
[5](1986) 7 NSWLR 332, 336-7.
[6](1986) 7 NSWLR 332, 337.
Thus, what was argued was that there had been another A4 certificate issued which could have grounded a third s.8(3) certificate and therefore there was no point in taking into account the procedural irregularity in the issuing of the second s.8(3) certificate. As Mr Heath submitted, that is very close to the circumstances of this case.
However, in my opinion, there are two significant differences between the facts in Parkes and the facts in this case. First, it does not appear that proceedings had been issued by the State of New South Wales against the distributor, and therefore there may not have been any basis for an argument about interest accruing on the debt. Secondly, no judgment having been entered, there was no proceeding on foot to wind up the corporate distributor debtor.
Here, as I have said, judgment has been entered against the plaintiff on the basis of the irregular certificate, and interest on that judgment is said to be accruing. Secondly, a bankruptcy notice has been issued which has all the consequences of a change of status if the first defendant is successful in bankrupting the plaintiff.
Section 121 of the VCAT Act is a statutory means of enforcing the orders of VCAT. As I apprehend it, any judgment entered pursuant to a certificate from the tribunal cannot be appealed. It is a purely administrative step. However, the entry of judgment is a significant act with all sorts of possible consequences, including bankruptcy for a defendant against whom judgment has been entered.
In those circumstances, as Mr Fried submitted, it would normally be said that the statutory requirement should be followed to the letter. Here, by virtue of the concession that there is an error of law on the face of the record which, as I apprehend it, means that this judgment has been irregularly entered, the statute has not been followed to the letter. As I have attempted to point out, in my view, the setting aside of the judgment is not a futile act in that there are significant and important consequences for the plaintiff in this proceeding if that were to be done.
There are many procedural irregularities in litigation that a court can turn a blind eye to or excuse a party from compliance. However, in my opinion, the entry of a default judgment is not one that should be allowed to stand if there has been an irregularity such as this.
As I said at the beginning, if this matter were to be argued out in full, it may be that a decision would be reached that the misdescription of the registrar of VCAT was not an error of law on the face of the record, but I am, by virtue of the first defendant’s concession, proceeding on the basis that it was. In those circumstances, I am not prepared to exercise my discretion to dismiss the proceeding forthwith.
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