Weber v Carkeek - [2022] VSC 498

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
ENFORCEMENT LIST

S ECI 2019 00010

BETWEEN:

MARK PAUL WEBER	Applicant
v
EWAN AUBREY CARKEEK & ORS (according to the schedule attached)	Respondents

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2022
DATE OF RULING:	26 August 2022
CASE MAY BE CITED AS:	Weber v Carkeek & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 498

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ENFORCEMENT – Application to set aside warrant of seizure and sale – Power to stay an execution of a judgment or order - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 66.16 – Inherent power - Snowball v Capital Securities XVII Pty Ltd [2018] VSC 588 - Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd (2007) 69 NSWLR 374.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff in person	M Weber	Self-represented litigant
For the Respondents	M Lapirow of counsel	Davies Moloney

HIS HONOUR:

Introduction

On 3 January 2019, Mark Weber (Weber) registered in the Supreme Court of Victoria (Court) an order made by the Victorian Civil and Administrative Tribunal (Tribunal) on 7 December 2018 (Tribunal order). The terms of the Tribunal order required Weber to pay Ewan Carkeek and Lorraine Carkeek (the Carkeeks) the sum of $84,014.35, for the Carkeeks to pay Weber the sum of $10,000 and for Ewan Carkeek to pay Weber the sum of $125,142.42. Having registered the Tribunal order, on 15 June 2022 Weber had the Court issue a warrant of seizure and sale of the Carkeeks’ property (warrant).0F[1] The Carkeeks have applied to have the warrant set aside on the basis that since the Tribunal order was made, the Carkeeks have obtained orders in related and other proceedings that Weber pay them sums which together are in excess of the amount they owe Weber by virtue of the Tribunal order.
[1]In fact, Weber had caused a warrant of seizure and sale to be issued on 22 January 2019. However, that warrant was not satisfied and subsequently expired.

For the reasons that follow I have decided that the warrant should not be set aside but that it is appropriate, subject to any further order of the Court, to stay execution of the warrant.

Background

The background to the relationship between Weber and the Carkeeks and their dispute was set out by Richards J in Weber v Carkeek.1F[2] I adopt her Honour’s summary:
[2][2020] VSC 366, [1]–[8].

Mark Weber met Ewan Carkeek in April 2016, during a horse riding event near Corryong, at a time when Mr Weber was looking to move to the high country. Mr Carkeek was looking for someone to work on a farming property that he owns with his wife, Lorraine Carkeek, at Berringama in the Upper Murray region. Mr Weber and Mr Carkeek agreed that Mr Weber would live in a house on the property in exchange for doing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Weber v Carkeek

Details

AGLC: Weber v Carkeek [2022] VSC 498
Case: [2022] VSC 498
Decision Date: 26 August 2022

CaseChat Overview and Summary

Weber and Carkeek were involved in a legal dispute that was heard in the Supreme Court of Victoria. Weber sought to set aside a warrant of seizure and sale issued against Carkeek. The warrant was a result of a judgment in Weber's favour, and Carkeek sought to avoid the enforcement of this judgment through the application.

The central legal issue before the court was whether the application to set aside the warrant of seizure and sale should be granted. This involved determining the appropriate circumstances under which the court would exercise its inherent power to stay the execution of a judgment or order, in accordance with the Supreme Court (General Civil Procedure) Rules 2015 (Vic), rule 66.16. The court had to consider the principles set out in Snowball v Capital Securities XVII Pty Ltd and Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd.

In assessing the application, the court considered the balance of convenience and the merits of the case. The court recognised that it had an inherent power to stay the execution of a judgment or order in appropriate circumstances, but noted that this power should be exercised sparingly. After examining the evidence and arguments presented by both parties, the court concluded that the application to set aside the warrant of seizure and sale should not be granted. The court found that the balance of convenience favoured enforcing the judgment and that Carkeek had not demonstrated a sufficient basis to warrant a stay.

The court's final orders were that the application to set aside the warrant of seizure and sale was dismissed, and the warrant remained in effect. The court emphasised the importance of adhering to the judgment and ordered that Carkeek comply with the terms of the warrant.

Orders