Winterburn v Vitale - [2008] WADC 54

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WINTERBURN -v- VITALE [2008] WADC 54

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 16 APRIL 2008

DELIVERED : 8 MAY 2008

FILE NO/S: CIV 1495 of 1990

BETWEEN: RHYS COLIN WINTERBURN & DORIS WINTERBURN
Plaintiffs
AND
ASSUNTA ELIZABETH VITALE
Defendant

Catchwords:

Practice and procedure - Western Australia - Application for leave to enforce judgement - Application to set aside judgement

Legislation:

Civil Judgement Enforcement Act, s¤13

Result:

Judgement not set aside

Leave to enforce not granted

Representation:

Counsel:

Plaintiffs: Mr C E Chenu
Defendant: Mr S G Scott

Solicitors:

Plaintiffs: Durack & Zilko
Defendant: Stables Scott

Case(s) referred to in judgment(s):

Nil

DEPUTY REGISTRAR HEWITT: In this matter there are two chamber summons's requiring determination, the first being brought by the plaintiff which seeks leave to execute on a judgment which was entered in default of appearance on 10 August 1990. The second application is an application by the defendant to set aside the default judgment.
I will first deal with the application for leave to execute on the judgment. Section 13 of the Civil Judgments Enforcement Act provides that the leave of the court is required before an order may be made to enforce a judgment if more than 6 years have elapsed since the date the judgment took effect.
In the present circumstances, something in the vicinity of 17 ½ years have elapsed since the judgment took effect.
Sub‑section 2(a) of s 13 relevantly provides that the court may give leave if it is satisfied that the person seeking to enforce the judgment is entitled to do so and that the person against whom the order is sought is liable to satisfy the judgment. The use of the word "may" indicates that the court is possessed of a discretion and is not required to grant leave but must consider the matter judicially and reach a decision which is fair in the circumstances. In the present case the defendant in effect advances the proposition that the enforcement of this judgment after 17 ½ years is not fair and she relies principally on that delay as the basis of her opposition to the application for leave.
Additionally, the defendant alleges that had she been aware of the judgment at an earlier stage, there were steps open to her which she may well have taken such as to apply to set aside the judgment or enter bankruptcy or enter a Pt X arrangement.
The first defendant alleges that because of the delay in executing the judgment, she is now precluded from most of those options and that has worked to her disadvantage.
It must first be said that there was no delay by the plaintiff in attempting to enforce the judgment. The plaintiff's issued a writ of fi fa and registered it against land of which the defendant was a registered proprietor. That means of enforcement proved ineffective since the property in question was subject to a number of mortgages and other encumbrances which left nothing over to satisfy the judgment.
The judgment was obtained against the defendant in the name Vitale and that was the name she used in her dealings with the plaintiff. In 1990 the first defendant left Australia and took up residence in Italy and the plaintiff's were advised by a report from the District Court bailiff dated 5 September 1990 which appears as annexure E to the affidavit of LEA Burra‑Robinson sworn 16 August 2007 that " … the debtor may now be a resident of Italy and has no intention to return to Perth".
Notwithstanding that gloomy news, the plaintiff maintained some level of enquiry to determine if the first named defendant had returned to Western Australia. In fact the first named defendant did return to Western Australia but she adopted her maiden name from that point, namely Campanella.
It was only late in the piece that the plaintiff's were moved to search under that name and discovered that the first named defendant had resumed residence in Western Australia which lead to their attempts to execute the judgment.
The first named defendant has criticised the plaintiff's efforts basically alleging that there were various indicators that she might be using the name Campanella and they were neglectful in failing to search under that name.
To the extent that the allegations of the first defendant might be construed as criticisms of the plaintiffs, I reject them.
The plaintiffs dealt with the first named defendant under the name Vitale. Real property was registered in the name of Vitale and I can see no particular reason for them to suppose that the first defendant would revert to her maiden name when and if she returned to Western Australia.
In summary therefore on this point, I consider that although there has been delay, it has not been through a want of diligence in the part of the plaintiffs, and of the various kinds of prejudice which I have so far described, none would justify refusing to extend the operation of the judgment and that the prejudice to the plaintiff's were I refused to extend the judgment would far outweigh anything which might flow to the first defendant.
There are however other matters which are pertinent to the question of enforcement of the judgment and I shall deal with those in relation to the other application, namely the application to set aside the judgment.
One of the difficulties facing this aspect of the matter is that all the primary documents appear to have been lost. Additionally, the recollections of the parties appear to me from the affidavit material to be unreliable. Essentially, my impression from the materials advanced by the first defendant are that she alleges she may have had a defence but her opportunity to properly investigate that matter has been lost. As a corollary to that proposition presumably she entertains some prospect of successfully defending the action (were it to be tried) because the position of the plaintiff is scarcely better and they would have difficulty proving this claim were it to proceed to a trial at this late stage.
On those matters, I consider there is little in the way of persuasive material which might incline me to set aside the judgment. One factor which might tilt the balance somewhat is the fact that it is clear on the materials which are before me that the defendant did not ever receive any notification of this writ, indeed she was not even in the country when it was served by way of substituted service.
Another matter which I consider to be of particular importance in the manner in which the claim has been pursued by the plaintiff. The plaintiff's claim arises from a contract to carry out certain building works on a Scarborough property. It is said that the building works were not carried out and as a consequence there was a total failure of consideration or alternatively, the moneys paid were had and received to the use of the plaintiff.
Although hard evidence in this matter is difficult to find, there are some facts which emerge. One fact which emerges is that the defendant applied for, and obtained, building approval to carry out whatever renovations were intended to be performed on the plaintiff's residence. In those circumstances, I have great difficulty in understanding how it can be said that there has been a total failure of consideration.
I accept on those facts there has been a failure to complete the contract and there may well be a substantial claim for damages to be assessed on normal principles. I cannot see that there has been a total failure of consideration. In saying that I do not suggest that the plaintiff's received moneys worth for what was undertaken on their behalf by the defendants but nonetheless, something was done and on the facts as I understand it, the proper measure of their damages should have been assessed rather than quantified as a liquidated sum.
On that analysis I consider the judgment which was entered by the plaintiff's against the defendants is arguably irregular. Given the elapse of time, the loss of primary documents and the fading of recollections, it is no longer possible to properly investigate that aspect of the matter and reach a firm conclusion as to whether the judgement was or was not irregular but on the materials before me, such as they are, I think it is a real possibility.
Therefore, whilst I am not prepared to set aside the judgment which was entered against the first named defendant, I nonetheless consider these matters to be of sufficient weight to refuse the application for leave to enforce the judgment.