The State of South Australia v Nash

[2022] SASC 105

Supreme Court of South Australia

(Civil: Application)

THE STATE OF SOUTH AUSTRALIA v NASH

[2022] SASC 105

Judgment of the Honourable Justice Stanley  

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS - EXECUTION AGAINST PROPERTY - OTHER WRITS AND MODES OF EXECUTION - CHARGING ORDERS

This is an application pursuant to s 8(1) of the Enforcement of Judgments Act 1991 (SA). The judgement creditor seeks a charging order over a property owned by the judgement debtor to secure a judgement debt.

The application is granted. 

Enforcement of Judgments Act 1991 (SA) s 8; Legal Services Commission Act 1977 (SA) s 18A; Uniform Civil Rules 2020 (SA) rr 12.1(2)(a), 203.2(1), referred to.
Andersons Solicitors v Schigulski (2004) 88 SASR 1, considered.

THE STATE OF SOUTH AUSTRALIA v NASH
[2022] SASC 105

Civil

STANLEY J: 

Introduction

1. The State of South Australia, as a judgment creditor, applies for an order charging a judgment debt against property owned by the judgment debtor, Peter Nash, at 455-463 South Road, Keswick (the property). The application is made pursuant to s 8(1) of the Enforcement of Judgments Act 1991 (SA). The judgment debt is $3,078.50 in addition to the costs of the application fixed in a sum of $500.

   Findings of fact

2. On 20 January 2022, Parker J made orders dismissing an appeal by Mr Nash, first, against a refusal of a Master of the Supreme Court to recuse himself on the ground of apprehended bias and second, against an order removing a caveat lodged by Mr Nash over the property. 

3. In dismissing the appeal, Parker J ordered Mr Nash to pay the State of South Australia the costs of the appeal on a standard basis.

4. On 9 May 2022, the State of South Australia filed a claim for costs in the amount of $3,078.50.[1]  Mr Nash did not file a response to the claim for costs. 

   [1]    FDN 15.

5. On 4 July 2022, a Deputy Registrar of the Supreme Court entered judgment for costs in default of a response to the claim for costs in the amount of $3,078.50.[2]

   [2]    FDN 18.

6. On 8 July 2022, the Crown Solicitor’s Office, acting for the State of South Australia, served a copy of the costs judgment upon Mr Nash by email.  Later that day, Mr Nash sent an email to the Crown Solicitor’s Office stating that he had been advised to have the costs judgment set aside.  However, no application was filed by Mr Nash with respect to the costs judgment.

7. On 25 August 2022, the Crown Solicitor’s Office wrote to Mr Nash requesting payment of the judgment debt within 21 days.  That letter placed Mr Nash on notice that, if the debt was not paid, the State of South Australia reserved the right to make an application to place a charge over the property in respect of the debt.  Later that day, Mr Nash sent an email to the Crown Solicitor’s Office and to the Office of the Attorney-General for the State of South Australia which attached an earlier email dated 7 July 2022 which complained about the process which resulted in the costs judgment. 

8. On 29 August 2022, the Crown Solicitor’s Office sent a further letter to Mr Nash in response to his email dated 25 August 2022.  That letter sought an indication from Mr Nash whether he intended to pay the judgment debt.  It reiterated that proceedings would be commenced to enforce the judgment debt if it was not paid. 

9. At the time this application was heard on 12 September 2022, the judgment debt had not been paid.  Further, there had been no response from Mr Nash to the letter from the Crown Solicitor’s Office dated 29 August 2022.

   Evidence of Mr Nash

10. At the hearing of this application Mr Nash gave evidence on his affirmation.  As best I could follow what he said, his evidence consisted of a recitation of the history of this matter as he perceived it, together with submissions as to why the Court should not grant the application.

11. In giving evidence Mr Nash admitted that he had been served with a copy of the costs bill in the sum of $3,078.50.  He did not dispute that he had not paid the judgment debt.  He asserted that he wished to have the judgement debt taxed.  However, he has not taken any steps to do so.  Mr Nash has corresponded with the Office of the Attorney General for the State of South Australia in relation to the matter but that has not provided any proper basis to refuse the application for the charging order sought by the State of South Australia.  As I have found, Mr Nash has not made an application to have the cost judgment set aside.  He has made clear that he is not prepared to pay the amount of the judgment sum while simultaneously asserting an intention to pay without taking any steps to do so.  I find that he does not have a genuine intention to pay the judgment sum. 

    Consideration

12. On the evidence before me I am satisfied that Mr Nash is the registered proprietor of the property. The Legal Services Commission has a charge over the property pursuant to s 18A of the Legal Services Commission Act 1977 (SA) (dealing no. 12527002). The Commissioner for State Taxation has a caveat over the property (dealing no. 13428374). A warrant for the sale of the property was registered on 27 August 2018 (dealing no. 13003014). The warrant for sale was extended on 25 February 2020 (dealing no. 13361831), 17 February 2021 (dealing no. 13469740) and 20 January 2022 (dealing no. 13718027).

13. It is important to recognise the nature and purpose of a charging order.  In Andersons Solicitors v Schigulski, Mullighan J observed that a charging order pursuant to s 8 of the Enforcement of Judgments Act 1991 (SA) does not create an interest in the property of the judgment debtor. It does no more than secure the judgment debt by the making of that order. Upon a charging order being made, the Court may make ancillary or consequential orders requiring registration of the charge, prohibiting or restricting dealings with the property subject to the charge, providing for the sale of the property and the application of the proceeds of sale or relating to any other incidental or consequential matters.[3] 

    [3] (2004) 88 SASR 1 at [12].

14. In this case I am satisfied that in the absence of a charging order being made it is unlikely Mr Nash will pay the judgment debt. 

    Urgency

15. The application by the State of South Australia for the charging order is made on an urgent basis because of the intention of the Sheriff to exercise the warrant of sale over the property on 23 September 2022.  It is expected that the property will be listed for sale soon after that date.  If a charging order is not made before the property is sold, the State of South Australia will be unable to secure the judgment debt against any property owned by Mr Nash. 

16. I also note that a possession order has been issued in another proceeding over a property at 8 Tilley Court, Marion which forms part of a deceased estate of which Mr Nash is the executor.[4]  There is evidence before the Court that a warrant over the property at 8 Tilley Court, Marion, will also be executed on 23 September 2022. 

    [4]    There is presently listed before me an application by the residuary beneficiary of that estate to pass over Mr Nash as executor. 

17. Accordingly, I am satisfied there is a material risk of prejudice to the State of South Australia if it is unable to secure the judgment debt against property owned by Mr Nash. 

    Uniform Civil Rules 2020 (SA) (UCR) r 203.2(1)

18. The State of South Australia further seeks dispensation from the requirement to comply with UCR r 203.2(1) notwithstanding that the judgment debt is less than $12,000. 

19. UCR r 203.2(1) provides:

    (1)Unless the Court otherwise orders, if a judgment debt against an individual is for $12,000 or less and the debt does not arise from the judgment debtor carrying on a business, no other enforcement process may be issued in respect of the judgement unless—

    (a)     a payment order has been made at an investigation hearing; or

    (b)     the judgment debtor failed to appear at the hearing of an investigation summons after having been duly served with the summons.

20. The power to dispense with compliance with the rule is conferred by UCR r 12.1(2)(a). 

21. In this matter, I am satisfied that it is appropriate to dispense with compliance with the terms of UCR r 203.2(1).  A judgment debt against an individual for $12,000 or less that does not arise from the judgment debtor carrying on a business, excludes the issuing of any enforcement process in respect of the judgment debt, unless a payment order has been made at an investigation hearing, or the judgment debtor has failed to appear at the hearing of an investigation summons after being duly served with the summons. 

22. In this case there has not been an investigation hearing but having regard to the reasons why the charging order is sought urgently, sufficient time does not exist to conduct an investigation hearing and the State of South Australia would be prejudiced by a requirement to conduct such hearing in order to comply with UCR r 203.2(1).  By the time that had occurred it is likely that the warrant of sale over the property, will have been executed by the Sheriff and the property sold. 

23. In all the circumstances I am satisfied on the evidence that it is most unlikely Mr Nash will pay the judgment debt without the making of a charging order over the property.  I am further satisfied on the evidence that there is no proper basis to refuse the application for the making of the charging order. 

    Conclusion

24. Accordingly, I would grant the application for an order charging a judgment debt against the property owned by Mr Nash. I would make orders in the terms of the draft charging order prepared and filed by the State of South Australia.[5]

    [5]    FDN 23.