TJ and RF Fordham Pty Ltd v Starhill Property Group Pty Ltd
[2017] NSWSC 240
•10 March 2017
Supreme Court
New South Wales
Medium Neutral Citation: TJ and RF Fordham Pty Ltd v Starhill Property Group Pty Ltd [2017] NSWSC 240 Hearing dates: 10 March 2017 Date of orders: 10 March 2017 Decision date: 10 March 2017 Jurisdiction: Common Law Before: Campbell J Decision: Orders made in accordance with the form of order.
Catchwords: CIVIL PROCEDURE – enforcement of a judgment – writ of sequestration – ex parte application for the issue of a writ of sequestration – held that application to be heard on an ex parte basis – usual undertaking as to damages – leave granted for the issue of a writ of sequestration Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Category: Procedural and other rulings Parties: TJ & RF Fordham Pty Ltd t/as TRN Group(Plaintiff)
Starhill Property Group Pty Ltd (Defendant)Representation: Counsel: Mr RD Marshall SC with Ms D Woods (Plaintiff)
Solicitors: Moray & Agnew (Plaintiff)
No appearance (Defendant)
File Number(s): 2017/67621
ex tempore judgment - revised
-
I am asked to deal with an application for the issue of a writ of sequestration on an ex parte basis. Writs of sequestration are little used in the ordinary work of the Common Law Division.
-
Under r 40.3 Uniform Civil Procedure Rules 2005 (NSW) a writ of sequestration may not be issued in enforcement of a judgment of the Court except by leave of the Court. Generally speaking, the application must be made by motion on notice and the applicant judgment creditor is required to serve the notice and affidavit in support on the judgment debtor whose property is sought to be sequestrated. The Court is empowered to dispense with service by UCPR 40.3(3). It is also relevant before turning to the merits of the application to record some of the provisions of UCPR 40.7 which provide that judgment is not enforceable, inter alia, by sequestration unless a sealed copy of the judgment has been personally served.
-
By UCPR 40.7(4), if a person who may be liable to sequestration by way of enforcement of a judgment has notice of the judgment received by being notified of the terms of the judgment, whether by telephone, telegram or otherwise, judgment may be enforced in the absence of evidence of personal service.
-
The judgment of the Court was entered on 7 March 2017 by way of registration of a certificate of adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW). The judgment creditor was a contractor to the judgment debtor, a developer, in respect of a project known as Stage 5 Civil Works, Park View Project, Spring Farm. The total amount of the judgment following a contested adjudication, if I can put it that way, is $2,168,858.30. The judgment has not been paid.
-
I am satisfied that this is an appropriate case in which to deal with the application on an ex parte basis. I am satisfied from the evidence of Mr Kaluski contained in his affidavit sworn on 9 March 2017 and in the documents exhibited to him at the time it was sworn that on the very day after the certificate was registered in the registry, that is to say, on 8 March 2017, settlement of the sale of the only known large asset of the judgment debtor took place. That was the sale of a property at 71 Springs Road, Spring Farm.
-
There are interesting aspects to that sale deposed to by Mr Kaluski which I must say do raise, I will put it no higher than, a suspicion that the sale took place, as it were, in the teeth of the adjudication process. One cannot help but feel there may have been a motive of avoiding the consequences of the adjudication. That suspicion is enhanced by a number of other considerations. First, the lawyers who have acted for the judgment debtor, I cast no aspersions upon them, were not instructed to act in relation to the process of enforcement. They, however, did continue to act on the sale of the property and also for the purchaser; an appropriate Chinese wall was apparently erected.
-
Secondly, the purchaser, or the guiding mind of the purchaser spoke to Mr Kaluski on 9 March 2017. After Mr Kaluski explained his purpose on the telephone to that person, a Mr Mann, he confirmed that he was the purchaser's representative and he volunteered the following:
"I can tell you the transaction was at arm’s length and Star Hill did receive funds in their name in the transaction. Although I'm not prepared to advise how much the contract sum was worth or how much Starhill received."
He then directed Mr Kaluski to his solicitor. I rather infer for the purpose of this application that the purchaser and the vendor are or may be associates.
-
Thirdly, having been informed by the former solicitor that he was no longer acting in relation to the matter by way of e-mail on 9 March 2017, Mr Kaluski forwarded by e-mail a copy of his previous letter to the solicitors advising of the entry of the judgment and the amount of it, to Mr Peter Tan, the guiding mind of the judgment debtor according to the information provided.
-
Mr Tan has not responded to that e-mail. There was no reason for me to suppose that it was not received and I confirm that the letter attached (to be found at page 205 of exhibit PK1) set out the terms of the adjudicator’s adjudication and the fact that judgment had been obtained in this Court. To put it one way, it advised against the dissipation of assets but also attached a property search indicating that the property had been sold as I have previously recounted.
-
Fourthly, Mr Kaluski has attempted to telephone Mr Tan on the landline telephone number with which he had been provided. He spoke to a person with an Asian accent who did not identify himself as Mr Tan on 9 March 2017 at 1.37pm. The person said that Mr Tan was not in the office and took a message. Mr Kaluski left his name and telephone number, and indicated the urgency of his enquiry. The speaker informed him that he would pass the message on. Mr Kaluski has had no reply to his telephone call. Fifthly, an earlier attempt to contact Mr Tan unsuccessfully on his mobile phone resulted in Mr Kaluski leaving a voice message for him. There has been no response.
-
All these facts taken together rather persuade me that there is a real risk that Mr Tan is attempting to avoid the consequences of the judgment adverse to his interests and the interests of the judgment debtor. In the circumstances, I am well satisfied that it is appropriate to deal with this matter on an ex parte basis.
-
I am satisfied, I record, for the purpose of the rule 40.7(4) that Mr Tan has received actual notice of the judgment of this Court, and the amount of it.
-
Those same facts that I have recounted from the evidence also persuade me that this is an appropriate case to grant leave for the issue of a writ of sequestration.
-
I am satisfied that the proposed sequestrators, Mr Mark Roufeil and Mr Simon Thorn, both of whom are professional insolvency practitioners and registered liquidators, are appropriate persons to act in that capacity. I have received from each of them in evidence an appropriate form of consent to act. Each also attaches his normal schedule of charges and I am satisfied that the rates appearing in the schedule of each of them are appropriate rates for professionals engaged in insolvency practice to charge.
-
The judgment creditor proffers the usual undertaking as to damages in respect of the consideration that I am proceeding ex parte. To my mind this will only be necessary to cover the possible consequences of proceeding in the absence of the judgment debtor rather than any wider consideration. This is especially so given that the judgment creditor has a benefit of a favourable result of an adjudication which has been registered in the form of a judgment of this Court.
-
I make orders in accordance with the form of order signed by me and dated today. I direct that the seal of the Court be affixed to the form of order and that the order may be entered forthwith and the writ be issued forthwith.
**********
Decision last updated: 14 March 2017
3
0
2