SJD Marketing v Venn
[2018] VCC 2129
•18 December 2018
| THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-14-00078
| SJD MARKETING PTY LTD | Plaintiff |
| v | |
| PENNI VENN | Defendant |
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JUDGE:HIS HONOUR JUDGE COSGRAVE
WHERE HELD: Melbourne
DATE OF HEARING: 1 June 2018. Further written submissions following the judgment in the Federal Court of Australia were filed by the defendant on 9 October 2018 and the plaintiff on 16 October 2018
DATE OF JUDGMENT: 18 December 2018
CASE MAY BE CITED AS: SJD Marketing Pty Ltd v Venn
MEDIUM NEUTRAL CITATION: [2018] VCC 2129
REASONS FOR RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Judgment and orders – self-executing orders – subsequent order made after entry of bankruptcy – leave granted pursuant to s 58(3) of the Bankruptcy Act 1966 (Cth) – whether judgment given or judgment entered – whether debt incurred by means of fraud – actual fraud
Legislation Cited: Bankruptcy Act 1966 (Cth); County Court Civil Procedure Rules 2018 (Vic)
Cases Cited:ACCC v The Bio Enviro Plan Pty Ltd [2004] FCA 415; DPP v Venn [2017] VCC 1043; Elders CED Pty Ltd v GKN Keller Pty Ltd [1986] NSWSC (11 July 1986); Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179; Fode v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 543; Freeman v Rabinov [1981] VR 539; Gertig v Davies (2003) 85 SASR 226; Hogg v J Isherwood-Hicks Pty Ltd (1992) 108 FLR 262; Jorgensen v Slater and Gordon Pty Ltd [2008] VSCA 110; Kousal v Adkins [2006] VSC 405; Lois Nominees Pty Ltd v Hill [No 2] [2016] WASC 104; Maxwell v Chittick [1994] NSWSC 196
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Moffatt | Falcone & Adams |
| For the Defendant | Mr P Fary | Madgwicks |
HIS HONOUR:
Nature of Application
1 The defendant, Penni Venn (“Venn”), applies for an order that the warrant of seizure and sale dated 12 December 2017 be set aside or stayed. In addition, Venn seeks certain declarations.
Background
2 On 8 January 2014, proceedings commenced between the plaintiff, SJD Marketing Pty Ltd (“SJD”), and Venn.
3 On 29 September 2014, Judge Anderson made the following orders:
“1. Upon the condition that, prior to 4pm on 26 October 2014, the defendants pay into court the sum of $101,410.44 (or otherwise provide security for that sum in a form previously agreed to in writing by the plaintiff) the defendant shall have leave to defend the plaintiff’s claim.
2. If the defendants, by 4pm on 26 October 2014, fail to comply with paragraph 1, there shall be judgment for the plaintiff as follows:
(a) Against the first defendant that the first defendant pay to the plaintiff the sum of $104,715.49 together with interest pursuant to statute from 8 January 2014 to 26 October 2014.
(b)Against the second defendant that the second defendant pay to the plaintiff the sum of $95,578.41 together with interest pursuant to statute from 8 January 2014 to 26 October 2014.
(c)That the first defendant’s counterclaim and the second defendant’s counterclaim be dismissed.
(d)That the defendants pay the plaintiff’s costs of the plaintiff’s claim and the defendants’ counterclaims including any reserve costs and the costs of the plaintiff’s summons filed 22 July 2014 and of the hearing today to be assessed by the costs court in default of agreement.
3. The trial date of 27 January 2015 is reinstated and confirmed provided the plaintiff, by 12 noon on 1 October 2014, pays the setting down for trial fee.
4. Reserve costs.”
4 On 24 October 2014, upon application by Venn, I made the following orders:
“1. The order made by His Honour Judge Anderson on 29 September 2014 is varied as follows:
(a)In paragraph 1 of the order the date of 26 October 2014 will read 7 November 2014.
(b)In paragraph 2 of the order the date of 26 October 2014 will read 7 November 2014.
2. The Defendants’ summons is adjourned to 7 November 2014.
3. Reserve liberty to the parties to the Commercial List Duty Judge for further directions upon giving reasonable notice to all other parties.
4. The Defendants pay the Plaintiff’s costs of this day to be taxed in default of agreement.”
5 Venn failed to pay into court the sum of $101,410.44 or otherwise provide security for that amount by the nominated date of 7 November 2014.
6 On 19 November 2014, the plaintiff’s solicitor, Marcus Adams, filed an affidavit at court in which he deposed to telephoning the County Court Registry on 10 November 2014 and being told that the defendants had not paid into court the sum of $101,410.44 or any part thereof. In his affidavit, he asked that the court give judgment to the plaintiff in accordance with paragraph 2 of the orders made by Judge Anderson on 29 September 2014.
7 On 26 November 2014, Venn became bankrupt upon the acceptance by the official receiver of a debtor’s petition which Venn herself presented.
8 On 27 November 2014, at 11:25am, Judge Kennedy made orders as follows:
“1. There shall be judgment for the plaintiff as follows:
(a)Against the first defendant that the first defendant pay to the plaintiff the sum of $104,715.49 together with interest pursuant to statute from 8 January 2014 to 26 October 2014.
(b)Against the second defendant that the second defendant pay to the plaintiff the sum of $95,578.41 together with interest pursuant to statute from 8 January 2014 to 26 October 2014.
(c)That the first defendant’s counterclaim and the second defendant’s counterclaim be dismissed.
(d)That the defendants pay the plaintiff’s costs of the plaintiff’s claim and the defendants’ counterclaims including any reserve costs and the costs of the plaintiff’s summons filed 22 July 2014 and of the hearing today to be assessed by the costs court in default of agreement.”
9 On 7 June 2017, Venn pleaded guilty to five charges of theft and one charge of obtaining property by deception. Judge Patrick sentenced Venn to a community corrections order for a period of three years.
10 On 27 November 2017, Venn was discharged from bankruptcy.
11 On about 12 December 2017, the court issued a warrant of seizure and sale.
12 On 13 February 2018, Venn was served with a warrant of seizure and sale and supporting affidavit of Marcus Adams of Falcone & Adams, solicitors for the plaintiff.
13 On 23 May 2018, Venn filed her application to stay or set aside the warrant.
Threshold issue
14 The parties argued that a threshold issue in this case was whether the making of the orders by Judge Kennedy on 27 November 2014, could properly be characterised as a creditor taking a fresh step in the proceeding, contrary to section 58(3) of the Bankruptcy Act 1966 (Cth). If they were, then SJD could not proceed with seizure and sale, and the warrant would have to be set aside.
15 Section 58 of the Bankruptcy Act provides:
“(1) Subject to this Act, where a debtor becomes a bankrupt:
(a) the property of the bankrupt, not being after‑acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee; and
(b) after‑acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in the Official Trustee or, if a registered trustee is the trustee of the estate of the bankrupt, in that registered trustee.
(2) Where a law of the Commonwealth or of a State or Territory of the Commonwealth requires the transmission of property to be registered and enables the trustee of the estate of a bankrupt to be registered as the owner of any such property that is part of the property of the bankrupt, that property, notwithstanding that it vests in equity in the trustee by virtue of this section, does not so vest at law until the requirements of that law have been complied with.
(3) Except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor:
(a)to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or
(b) except with the leave of the Court and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding.”
16 Venn contended that the order made by Judge Kennedy contravened section 58(3) because it constituted the taking by SJD as a creditor of a fresh step in the proceeding.
17 Venn relied upon the decision of RD Nicholson J in ACCC v The Bio Enviro Plan Pty Ltd.[1] In that case, the trial judge referred to a decision of the Full Court of the South Australian Supreme Court, Gertig v Davies,[2] which he said held that, for the purposes of section 58(3)(b), the hearing of an application made prior to bankruptcy and the making of a decision on such an application after bankruptcy constituted a “fresh step” in the proceeding by the party seeking an order. Although the trial judge was urged to adopt the contrary minority view, he decided that he should follow the majority opinion.
[1][2004] FCA 415.
[2](2003) 85 SASR 226.
18 On my reading of Gertig v Davies, the Court entered judgment for Davies on 23 August 2001 for damages and interest totalling $314,124.30. On 28 August 2001, the court ordered that Davies recover costs against Gertig for the period up to 14 days after 14 December 2000 and that thereafter, Gertig recover costs against Davies.
19 On 23 August 2001, counsel for Gertig sought an order that the balance of the costs payable to Gertig be set-off against the damages payable by Gertig to Davies. The trial judge deferred that application.
20 On 23 January 2002, Davies became bankrupt.
21 Subsequent to Davies becoming bankrupt, the trial judge heard submissions from the parties in respect of the application for an order that costs be set-off against the damages payable to Davies.
22 On 6 August 2002, the trial judge held that section 58(3)(a) of the Bankruptcy Act precluded him from ordering that the costs payable by Davies be set-off against the damages payable to Davies.
23 In my opinion, Gertig v Davies is distinguishable from the present case. In Gertig, the parties attended court and made submissions to the trial judge after Davies went bankrupt. After hearing those submissions, the trial judge made a decision with respect to the application. By comparison, in the present case, SJD made its application in relation to the finalisation of Judge Anderson’s self-executing order before 26 November 2014 when Venn went bankrupt. SJD did nothing in relation to procuring the orders of Judge Kennedy (which founded the basis of the warrant of seizure and sale) after the date of Venn’s bankruptcy.
Leave to proceed
24 On 7 June 2018, Venn’s application was stayed pending the outcome of an application by the plaintiff to the Federal Court of Australia for leave pursuant to section 58(3) of the Bankruptcy Act.
25 SJD made application to the Federal Court for orders that:
(a) pursuant to section 58(3)(b) of the Bankruptcy Act, the applicant be granted leave to obtain judgment of her Honour Judge Kennedy of the County Court of Victoria delivered on 27 November 2014 in proceeding CI-14-00078; and
(b) such leave be deemed to have been granted on 27 November 2014.
26 His Honour Justice Middleton granted the relief which SJD sought. In doing so, he noted that the main issue to be determined in this County Court proceeding concerned the practice and procedure of the County Court. His Honour did not consider that the grant of leave would in any way undermine the Federal Court’s jurisdiction in bankruptcy or that it would be inconsistent with the principles of the Bankruptcy Act.
27 As a result of his Honour’s decision, it is no longer necessary to consider one of the initial arguments agitated by Venn - that is, whether the making of the orders by Judge Kennedy on 27 November 2014 could properly be characterised as a creditor taking a fresh step in the proceeding, contrary to section 58(3) of the Bankruptcy Act.
Issues
28 SJD summarised its submissions about the issues to be determined as follows:
(a) is the order of Judge Anderson on 29 September 2014 a judgment as opposed to an order?
· if the answer to (a) were yes, the debt owed by Venn to SJD merged into the judgment with the result that the debt would be released upon Venn being discharged from her bankruptcy.
· the consequence of the conclusion above was that SJD did not have a judgment upon which to issue a warrant of seizure and sale and the warrant dated 12 December 2017 should be set aside or stayed.
(b) if the answer to (a) were no, on the date of the bankruptcy Venn owed SJD a debt. Was the debt incurred by means of fraud?
· If the answer to (b) were yes, by reason of the operation of section 153(2)(b) of the Bankruptcy Act, Venn’s discharge from bankruptcy did not release her from the debt.
· the consequence of this conclusion was that SJD had a judgment, which was pronounced by her Honour Judge Kennedy on 27 November 2014, upon which to issue a warrant of seizure and sale and Venn’s application should be dismissed.
29 Venn submitted that, for the purposes of the fraud exception in section 153(2) of the Bankruptcy Act, the critical issue was the character of the debt owed by Venn to SJD at the date of bankruptcy.
30 The character of the debt owed by Venn to SJD at the date of bankruptcy was dependent upon whether Judge Anderson’s self-executing order of 29 September 2014 was an order or a final judgment. Accordingly, the issues to be decided in this case are as follows:
(a) Was Judge Anderson’s order of 29 September 2014 an order or a final judgment?
(b) If Judge Anderson’s order were an order and not a judgment, was the debt owed by Venn to SJD incurred by fraud, such that the debt was not released by Venn’s discharge from bankruptcy?
31 It is not necessary to consider the position if Judge Anderson’s order was a final judgment because the parties agreed that the cause of action would merge with the judgment and there would be no debt the plaintiff could enforce against the defendant.
Was Judge Anderson’s order of 29 September 2014 an order or a final judgment?
Parties’ positions
32 SJD argued that Judge Anderson’s order was a mechanism by which it could obtain a final judgment if Venn failed to pay into court $101,410.44 (or otherwise provide security for that sum in a form previously agreed to in writing by SJD). By reason of Venn failing to make the required payment, SJD was entitled to proceed to judgment. It was not until SJD filed the affidavit of Marcus Adams and Judge Kennedy subsequently ordered judgment in favour of SJD that the judgment took effect.
33 In granting leave to SJD, Justice Middleton refrained from making any determination about the finality of Judge Anderson’s 29 September order, but referred to two cases as providing guidance on the effect of self-executing orders: Jorgensen v Slater and Gordon Pty Ltd[3] and Freeman v Rabinov.[4]
[3][2008] VSCA 110.
[4][1981] VR 539.
34 SJD submitted that in both cases the defaulting party was the plaintiff. This was said to be an important factor because the effect of a self-executing order depends upon the identity of the party in default. This position was explained by Justice Lush (with whom Murray and King JJ agreed) in Freeman v Rabinov:[5]
“…when default is made in complying with the condition of a self-executing order, the action is, if the party in default is the plaintiff, at an end, and if the party in default is the defendant, the plaintiff is placed in a position in which he is entitled to proceed to judgment…”
[5]Ibid, 543.
35 SJD argued that there were two limbs to this statement: the first, if the party in default was the plaintiff, and the second, if the party in default was the defendant. Where the party in default was the plaintiff, no further step was required because the action was at an end. Where the party in default was the defendant, a further step was required in order to effect judgment.
36 This position differed from the statement by the Court of Appeal in Jorgensen v Slater and Gordon Pty Ltd. In Jorgensen’s case, Mr Jorgensen was the defaulting party and the appellant in the appeal. He was in default of a self-executing order regarding the service of a revised notice of proposed contents of an appeal book and other steps necessary for the prosecution of the appeal. The Court of Appeal, comprising Maxwell ACJ and Forrest AJA, in granting relief from the operation of the self-executing order, said:[6]
[6][2008] VSCA 110 at [5].
“An order described as self-executing is precisely that. It operates of its own force. That is, if the order has not been complied with the sanction specified in the order takes effect automatically upon the expiration of time for compliance”
I note that the Court of Appeal, in respect of the passage quoted, referred to Freeman v Rabinov at page 543 where Lush J made the observation quoted at paragraph 34 above.
37 In effect, SJD submitted that Jorgensen’s case was distinguishable because the defaulting party was the plaintiff prosecuting the litigation, and not the defendant. The statement quoted was made in that context and not one in which the defaulting party was the defendant.
38 SJD submitted that, as a result of Judge Anderson’s order and by reason of Venn’s non-compliance with that order, it was placed in a position in which it could proceed to judgment. SJD contended that until judgment was obtained, Venn owed it a debt.
39 SJD referred to two cases involving a defendant as the defaulting party in support of its proposition that a plaintiff must proceed to obtain judgment upon default by the defendant, rather than judgment taking effect immediately upon default. They were Kousal v Adkins[7] and Elders CED Pty Ltd v GKN Keller Pty Ltd.[8]
[7][2006] VSC 405.
[8][1986] NSWSC (11 July 1986).
40 The underlying facts of those cases are not important for present purposes, but in each case, reference was made to the additional step taken by the plaintiff to obtain or enter judgment following the defendant’s non-compliance with a self-executing order. In Kousal’s case, for example, when the defendants appealed Master Evans’ decision granting the plaintiff possession of land and damages, Hargrave J allowed the appeal but did so on condition that by 4:00pm on 19 August 2005, the defendants deliver to the Prothonotary the relevant duplicate certificate of title. His Honour also ordered that, if the defendants failed to comply with this order, there be judgment for the plaintiff on the same terms as ordered by Master Evans. The defendants failed to comply with the order by 19 August 2005 or at all. On 26 August 2005, the Prothonotary gave judgment for possession with damages to be assessed. Hence, steps were taken between 19 August and 26 August to prove the non-compliance and obtain judgment.
41 Venn relied on the observations made by Justice Middleton regarding the effect of self-executing orders in Jorgensen and Freeman in support of its position that the order of Judge Anderson was a final judgment as opposed to an order.[9]
Analysis
[9]Defendant’s further supplementary submissions at [3]
42 Order 60A of the County Court Civil Procedure Rules 2018 (Vic) (“the Rules”) deals with the authentication of judgments. Authentication of a judgment is not required, nor permitted, except as provided in Rule 60A.03, which provides as follows:
“A judgment given or an order other than a judgment or order under Rule 59.06[10] shall not be authenticated unless –
a)the Court or Registrar so directs;
b)it is to be enforced;
c)it is required by these Rules or by its terms to be served; or
d)an appeal has been instituted or an application for leave to appeal made.”
[10]Rule 59.06 provides for a consent judgment or order.
43 Rule 60A.05 states that:
“(1) Where a party is entitled to enter judgment, a judgment is entered for the party when a judgment is authenticated by the Registrar in accordance with Rule 60A.02(1)(a)(ii).”
44 Rule 60A.02(1)(a)(ii) states that:
“(1) A judgment or an order other than a judgment or order under Rule 59.06 is authenticated when a form of the judgment or order, drawn up and lodged with the Registrar in accordance with Rule 60A.07 –
(a)is –
…
(ii) sealed by the Registrar with the seal of the Court; and
(b)is filed.”
45 Thus, according to the Rules, a judgment is entered when a party has the appropriate form authenticated by the Registrar of the Court – by the Registry putting the seal of the court on the document and having it filed in the court.
46 The terms “judgment given” and “order made” are defined in the Rules as an order made or a judgment given “by the Court at the trial of a proceeding or on the hearing of an application in a proceeding”.[11]
[11]Rule 1.13(1).
47 The term “judgment entered”, though not defined in the Rules, was described by Justice Kearney in Hogg v J Isherwood-Hicks Pty Ltd,[12] as “a judgment entered in the records of the Court on the demand of the plaintiff, pursuant to his right under the rules to do so”.[13]
[12](1992) 108 FLR 262.
[13]Ibid, 263.
48 It is clear from the Rules and case law that judgment is not automatically entered upon a defendant’s failure to comply with a condition of a self-executing order. The plaintiff must take the further step of entering judgment.[14]
[14]See also, for example, the decision of Young CJ in Soft-Tech International Pty Ltd & Anor v Lidco Aluminium Pty Ltd & Ors, Victorian Supreme Court, Unreported, 17 July 1990. As an example in Western Australia, see Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179 at [25]-[26].
Does the fraud exception in section 153(2)(b) apply?
49 As I accept that SJD obtained its judgment on 27 November 2014, it follows that Venn owed SJD a debt at the time she declared bankruptcy. Ordinarily, this debt would be a provable debt in bankruptcy and the defendant’s liability to satisfy the debt would be released upon discharge from bankruptcy.[15]
[15]Section 153(1), Bankruptcy Act 1966 (Cth).
50 SJD relied upon the exception contained in section 153(2)(b) of the Bankruptcy Act in arguing that Venn’s debt was not released by her discharge from bankruptcy as the debt was incurred by means of fraud.
51 Section 153 of the Bankruptcy Act provides:
“(1) Subject to this section, where a bankrupt is discharged from a bankruptcy, the discharge operates to release him or her from all debts including secured debts provable in the bankruptcy, whether or not, in the case of a secured debt, the secured creditor has surrendered his or her security for the benefit of creditors generally.
(2) The discharge of a bankrupt from a bankruptcy does not:
…
(b)release the bankrupt from a debt incurred by means of fraud or a fraudulent breach of trust to which he or she was a party or a debt of which he or she has obtained forbearance by fraud.”
52 SJD referred to her Honour Judge Patrick’s Reasons for Sentence and submitted that Venn’s fraud was established in the circumstances.
53 Venn submitted that, at the date of bankruptcy, the plaintiff’s debt was a judgment debt and as a result of the doctrine of merger, that debt did not continue to have a separate existence.
54 Venn argued that, because the debt did not have a separate existence at the date of bankruptcy, it did not satisfy the description of a “debt incurred by means of fraud or fraudulent breach of trust to which he or she was a party”.
55 For a debt to be excluded from discharge under section 153(2)(b), the test is whether the bankrupt incurred the debt as a result of some “deliberate dishonesty to the prejudice of another person’s proprietary right.”[16]
[16]Fode v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 543 at [77].
56 The term “fraud” has been given a broad interpretation in the context of the bankruptcy provisions. Section 153(2)(b) has been found to have application in circumstances where equitable fraud has been established.[17] The extent of that application need not be considered in circumstances where the fraud alleged is actual fraud, such as exists in the present case.
[17]Maxwell v Chittick [1994] NSWSC 196.
57 In Lois Nominees Pty Ltd v Hill [No 2],[18] Justice Beech analysed the legal principles of fraud as they apply under the Bankruptcy Act. The defendant in that case, Gordon Hill, a solicitor, misapplied monies paid into his trust account by the plaintiffs. While Mr Hill admitted he had committed breaches of trust, the issue before the court was whether he did so fraudulently for the purposes of the fraud exception contained in section 153(2)(b) of the Bankruptcy Act.
[18][2016] WASC 104.
58 In finding that the defendant had acted fraudulently, Beech J considered the circumstances surrounding the commission of the acts, including the terms of the trust, the timing of certain payments made out of the trust, and communications from the defendant to the plaintiff and others regarding the payments. These factors were weighed against the defendant’s personal and professional background.
59 In the context of fraud, the defendant’s behaviour is to be assessed subjectively, rather than objectively. Thus, the plaintiffs in Lois Nominees had to show that when causing the trust payments to be made, the defendant knew that he was not entitled to use the funds in the way that he did, or that he acted with reckless disregard as to whether he was entitled to use them in that way.
60 Here, I must be satisfied that when Venn made the subject payments from her employer’s account to her own account and that of her husband, she knew, or was recklessly indifferent to the fact that she was not authorised to do so.
61 Venn worked as a bookkeeper for SJD from February 2009 to August 2013. She worked from home and was entrusted with unsupervised remote access to the plaintiff’s bank accounts and accounting software.[19]
[19]DPP v Venn [2017] VCC 1043 at [2].
62 Over the course of approximately four and a half years, Venn was found to have made a total of 22 unauthorised payments to herself and her husband amounting to $165,480.15. Her Honour Judge Patrick noted that Venn made false entries in the paper or electronic records of the business in order to conceal the payments. In addition, Venn would obtain the managing director’s signature on cheques payable to her husband, but recorded a different payee on the cheque butt.[20]
[20]Ibid at [6]-[7].
63 Judge Patrick described Venn’s conduct as devious and deceptive, and said that such conduct was carried out in a way that would avoid detection. It was further noted that Venn’s offending was deliberate and calculated, and her moral culpability was high.[21]
[21]Ibid at [25]-[26].
64 Based on the evidence before me, I am satisfied that, for the purposes of section 153(2)(b) of the Bankruptcy Act, Venn acted fraudulently in making unauthorised payments to her and her husband’s account. Venn’s conduct is not consistent with someone who held a genuine, but mistaken, belief as to their entitlement to the funds. The payments were made in circumstances where they were unlikely to be detected and it is apparent that Venn took active steps to conceal her misconduct. Accordingly, it can be inferred from Venn’s actions that when causing the payments to be made, Venn knew that she was not entitled to use the funds in the way that she did.
Conclusion
65 On the evidence before me, I conclude that:
(a) because the judgment against Venn did not take effect until 27 November 2014, Venn owed SJD a debt when she became bankrupt on the previous day;
(b) because SJD obtained leave to proceed from the Federal Court of Australia, it was entitled to enter judgment on 27 November 2014 in accordance with the order made on 29 September 2014 by Judge Anderson (and later varied by me);
(c) the debt owed to SJD was incurred by means of fraud;
(d) as a result, when Venn was discharged from bankruptcy on 27 November 2017, she was not released from the debt owed to SJD; and
(e) accordingly, SJD was entitled to enforce the judgment against Venn and obtain a warrant of seizure and sale.
66 Subject to hearing from the parties, I propose to order that the defendant’s summons filed 23 May 2018 be dismissed and the defendant pay the plaintiff’s costs of the application, such costs to be taxed on a standard basis in default of agreement.
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