Withycombe v Moistlow Pty Ltd - [2011] QDC 30

[2011] QDC 30

DISTRICT COURT

CIVIL JURISDICTION

JUDGE R JONES

No 1263 of 2003

HERBERT JOHN WITHYCOMBE & OTHERS	Applicant/Plaintiffs
and
MOISTLOW PTY LTD & OTHERS	Respondent/Defendants

BRISBANE

..DATE 11/03/2011

ORDER

HIS HONOUR: This is an application for leave to commence enforcement proceedings against the fourth defendants consequent upon an order made against them.

Leave is required under rule 799 of the Uniform Civil Procedure Rules because more than six years has elapsed since the orders were made.

The application was opposed by Mr Ellis who is one of the fourth defendants and has the authority to act for the other fourth defendant, his wife. Under rule 799(3) leave could have been sought on an ex parte basis but in this case the fourth defendants were given notice of the application.

The Judgment underlying this application was a Judgment entered in favour of the plaintiff against the fourth defendants and the second defendants on 22 April 2003 in default of the defendants filing a notice of intention to defend.

Under rule 799, sub rule (4), on an application for leave to start enforcement proceedings in such circumstances the applicant must satisfy the Court;

a) As to the amount including interest owing at the date of the application, and,

b) If it is more than six years since the money order was made as to the reasons for the delay, and,

c) If that has been a change in an enforcement creditor or enforcement debtor as to the change.

d) That the applicant is entitled to enforce the order, and,

d) That the enforcement debtor, against whom enforcement is sought, is liable to satisfy the order.

It is not being disputed that the matters in sub rules (4)(a) and (4)(e) are satisfied, assuming that they need be in an application of this type. (4)(c) is not relevant. As to (4)(d) the respondents/defendants assert that the applicants are not entitled to enforce the orders as, as I understand the argument, it would cause them material prejudice.

Before I come to the reasons for delay and prejudice I should mention that this application was adjourned by me on Monday of this week. The reason that I granted the adjournment was, as I understood it, so that Mr Ellis could get legal advice and to put together material which would establish the basis for disputing the balance of the debt as alleged.

Today Mr Ellis appeared in person again and, more importantly, though, no documentation was produced which in any way challenged the balance of the debt as asserted by the applicants.

Instead an affidavit of Mr Ellis was relied on. In paragraphs five to 17 of that affidavit Mr Ellis deposes to the following, "The plaintiff claimed the amount of $59,628.30 in 2003. In late November 2004 I approached the plaintiff with an offer of payment over time. The plaintiff agreed to the amount of 22,000, 20,000 to be paid at a rate of $25 per week until paid with no interest to…

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 Withycombe v Moistlow Pty Ltd

Details

AGLC: Withycombe v Moistlow Pty Ltd [2011] QDC 30
Case: [2011] QDC 30
Decision Date: 11 March 2011

CaseChat Overview and Summary

The case of Withycombe v Moistlow Pty Ltd concerns an application for leave to commence enforcement proceedings against the fourth defendants, pursuant to rule 799 of the Uniform Civil Procedure Rules 1999. The applicants, Herbert John Withycombe and others, sought enforcement of a judgment entered against the fourth defendants and the second defendants on 22 April 2003. The application was opposed by Mr Ellis, one of the fourth defendants, who argued that the applicants were not entitled to enforce the orders due to potential material prejudice to him and his family.

The court was required to decide several legal issues, including whether the applicants had satisfied the requirements under rule 799(4) for granting leave to commence enforcement proceedings, the reasons for the delay in bringing the application, and whether the delay had caused prejudice to the fourth defendants. The court examined the applicants' actions, the reasons for the delay, and the evidence of prejudice presented by the fourth defendants.

The court found that the applicants had satisfied the requirements of rule 799(4)(a) and (4)(e), as there was no dispute about the amount owing or the applicants' entitlement to enforce the order. The court noted that the applicants had not been idle since the judgment, as they had entered into a payment arrangement with the fourth defendants, which continued until September 2007. The court also found that while there were some unexplained periods of delay, it was reasonable to infer that the applicants were cautious about racking up further legal fees due to the respondents' financial situation. The court concluded that the fourth defendants had not provided sufficient evidence of prejudice caused by the delay, particularly in light of the applicants' actions in January 2010, which demonstrated their continued pursuit of the debt.

The court exercised its discretion in favour of the applicants, granting leave to commence enforcement proceedings against the fourth defendants. The court also ordered the fourth defendants to pay the applicants' costs of and incidental to the adjournment of the matter on 7 March 2011, and the costs of the current proceedings, which were not to include any costs associated with the adjournment on 7 March 2011.

Orders