Williams v Leach

Case [2023] QDC 124

DISTRICT COURT OF QUEENSLAND

CITATION: 

Williams & Ors v Leach [2023] QDC 124

PARTIES:

IAN MALCOLM WILLIAMS
(First Plaintiff)

AND

WHARF ROAD PTY LTD ABN 74 099 614 730

(Second Plaintiff)

AND

WALLABY664 PTY LTD CAN 068 957 684 ATF THE WILLIAMS FAMILY TRUST ABN 22 270 829 736
(Third Plaintiff)

v

CHRISTOPHER LEACH
(Defendant/Applicant)

FILE NO:

220/23

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT: 

District Court

DELIVERED ON:

1 June 2023  (ex tempore, revised from transcript)

DELIVERED AT:

Brisbane

HEARING DATE: 

1 June 2023  

JUDGE:

Andreatidis KC DCJ

ORDER:

1.   Application dismissed.

2.   The defendant pay the plaintiffs’ costs.

CATCHWORDS:

PROCEEDINGS – CIVIL PROCEDURE – PAYMENTS BY INSTALLMENTS – PREREQUISITES FOR INSTALMENT ORDER – where the defendant applies for an order making payments by instalments – where the plaintiff opposes the order – factors to which the court must have regard in deciding whether to make an instalment order – whether the enforcement debtor has means to satisfy the order – whether the order will be satisfied within a reasonable time – whether an order authorising payments by instalments ought to be made

LEGISLATION

Uniform Civil Procedure Rules 1999 (Qld) rr 868, 869

CASES

Big Country Developments Pty Ltd v Peter Griffiths (No 5) NSWSC 865

Bucknell v Robins [2008] QCA 214

C Tina Pty Ltd v Barham-Floreani [2019] VSC 819

Hellier Capital Pty Limited v Richard Albarran [2009] NSWSC 403

COUNSEL:

Mr T Jackson (Plaintiffs/Respondents)

Mr J Manner (Defendant/Applicant)

SOLICITORS:

Mills Oakley (Plaintiffs/Respondents)

Etienne Lawyers (Defendant/Applicant)

Background

  1. This is an application pursuant to rule 868 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) for an order for payment of a judgment debt by instalments.  The background facts are largely uncontested.  It is the detail of the financial circumstances of the defendant that appear to be questioned. 

  2. In short compass, proceedings were commenced on 1 February 2023 for a debt owed by the defendant to the plaintiffs.  No defence filed or served, and judgment by default was entered on 28 March 2023. 

  3. The amount of the judgment debt is in the order of $565,000.  A bankruptcy notice was served on 5 May 2023.  Following the service of the bankruptcy notice, Mr Leach filed and served this application. 

  4. It is not contested that Mr Leach has not made any payments at all in relation to the debt.  It is not contested that Mr Leach had previously, on a number of occasions, made promises to pay the debt and that he has paid nothing so far. 

  5. Rule 869 of the UCPR provides as follows:

    869  Prerequisites for instalment order

    (1)   In deciding whether to make an instalment order, the court must have      regard to the following—

    (a)       whether the enforcement debtor is employed;

    (b)       the enforcement debtor’s means of satisfying the order;

    (c)       whether the order debt, including any interest, will be satisfied                     within a reasonable time;

    (d)       the necessary living expenses of the enforcement debtor and the                  enforcement debtor’s dependants;

    (e)       other liabilities of the enforcement…

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Details
AGLC
Williams v Leach [2023] QDC 124
Case
[2023] QDC 124
Decision Date

CaseChat Overview and Summary

Williams v Leach was a case before the court where the defendant, Leach, sought an order to pay the judgement debt in installments. The plaintiff, Williams, opposed the application, and the court was required to determine whether the defendant had the means to satisfy the order and whether the order would be satisfied within a reasonable time. The court also had to consider whether an order authorizing payments by installments ought to be made. The court found that the defendant's evidence was insufficient to establish that they had the means to satisfy the order. The court was particularly concerned with the lack of evidence of the proposed bond raising and the establishment of the joint venture vehicle. The court found that the defendant had not met the mandatory requirements of rule 869 and dismissed the application. The court also ordered that the defendant pay the plaintiff's costs.

The court found that the defendant's evidence was insufficient to establish that they had the means to satisfy the order. The court was particularly concerned with the lack of evidence of the proposed bond raising and the establishment of the joint venture vehicle. The court found that the defendant had not met the mandatory requirements of rule 869 and dismissed the application. The court also ordered that the defendant pay the plaintiff's costs. The court found that the defendant's evidence was insufficient to establish that they had the means to satisfy the order. The court was particularly concerned with the lack of evidence of the proposed bond raising and the establishment of the joint venture vehicle. The court found that the defendant had not met the mandatory requirements of rule 869 and dismissed the application.

Orders

Orders of the court

1. Application dismissed.

2. The defendant pay the plaintiffs’ costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I will go through each of the mandatory requirements of rule 869 shortly. It will assist the parties to understand the outcome by reference to the evidence that has been filed and what I will describe as the gaps or the lacunas in the material. I say that because, as will become apparent, the aspect of rule 869 that I have particular concern about being satisfied is rule 869(1)(b). For completeness, I will, of course, deal with each of the mandatory requirements in turn. The evidence I will start with exhibit 1, which is an investment memorandum of understanding between Sanguine Holdings B.V. (SBV), which is a company incorporated in the Netherlands, and possibly a company called Transmatch Realty Advisors B.V., which is also incorporated in the Netherlands. I say “possibly”, because when one turns to the execution clause of the document, a different corporation is signing the document, being Transmatch Financial Advisors B.V. The fundamental proposition in terms of proposed income by Mr Leach is that there will be a bond raising undertaken overseas involving €2 billion as a consequence of the transactions occurring between SBV and Transmatch Realty Advisors B.V. For the reasons which follow, the memorandum of understanding (MOU), which is exhibit 1, does not instil confidence in me in relation to the raising of the funds or the prospect of it occurring at all. At page 3 of 15, what is clause 4, there is an obligation on the part of Transmatch Realty Advisors B.V. to immediately subscribe €1.45 billion for something called “Sanguine’s green bonds funds and other investments”. The obligation to immediately subscribe should be understood in the context of the date of the MOU, which is 17 April 2023. What is missing is any evidence of Transmatch Realty Advisors, or any other Transmatch entity, making the subscription at all. Whether it was paid or not paid is unknown. Further, it is not clear at all from the terms of this document how it is that SBV will ever earn the money to pay Mr Leach. An additional feature of the memorandum to be noted is, on page 3, about two-thirds down the page, is the following: It is hereby agreed and understood between the parties that the green bonds will be managed by the manager of the bond issue. The parties will establish a joint vehicle – a joint venture vehicle to jointly manage and fairly share the administration fees and capital transfer for future investment financed by Transmatch. The investments committee will consist of three members, being two from Transmatch and one from SBV. Each participant will have a third of the votes and the votes will be defined with a simple majority. There is no evidence of the establishment of that special purpose vehicle for the joint venture. There are no details provided as to who the other two people will be from Transmatch. There is no evidence indicating any agreement from Transmatch as to the payment to SBV. And, again, it is not clear at all how SBV will be making any payments pursuant to the asserted employment contract, pursuant to these transactions.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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