YARRALL v Barker - [2003] WASC 268

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: YARRALL -v- BARKER [2003] WASC 268

CORAM: EM HEENAN J

HEARD: 12 DECEMBER 2003

DELIVERED : 12 DECEMBER 2003

FILE NO/S: FRJ 3 of 2002

BETWEEN: MARY-ANNE YARRALL
Applicant
AND
JOHN CHARLES BARKER
Respondent

Catchwords:

Foreign Judgments Act (Clth) - Judgment of High Court of New Zealand registered as a judgment of this Court - Restraint of Debtors Act (1984) - Warrant for arrest of judgment debtor on risk of departing from State - Debtor released on reporting conditions and on surrender of passport - Directions to enable judgment creditor to attempt enforcement of judgment - No enforcement proceedings attempted for over 12 months - Debtor bankrupt in New Zealand - Affidavit of means showing no significant assets in State - Debtor wishing to leave State to take up employment overseas - Restraints imposed under Restraint of Debtors Act discharged in view of time elapsed without steps taken to enforce judgment

Legislation:

Foreign Judgments Act 1991 (Clth)

Restraint of Debtors Act (1984) (WA)

Result:

Restraints under Restraint of Debtors Act discharged

Category: B

Representation:

Counsel:

Applicant: Mr M W Hutchings
Respondent: In person

Solicitors:

Applicant: Butlers
Respondent: In person

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

Nil

Case(s) also cited:

Australian Mutual Provident Society v Gregory (1908) 5 CLR 615
Hall v Woolf (1908) 7 CLR 207; 15 ALR 60
Radich v Bank of New Zealand (1993) 45 FCR 101; 116 ALR 676

EM HEENAN J: These proceedings were commenced by originating motion on 3 October 2002 by which the applicant sought to register in this Court, under the provisions of the Foreign Judgments Act 1991 of the Commonwealth of Australia, a judgment against the respondent entered in her favour in the High Court of New Zealand dated 11 June 1999.
While that application was pending a further application was made by the applicant for an order, under the Restraint of Debtors Act (1984) Western Australia, for the arrest of the defendant on the basis that the evidence indicated that he was likely to depart from the jurisdiction leaving a substantial debt unsatisfied.
In due course the judgment of the High Court of New Zealand was registered in this state and no attempts have ever been made by the respondent to set aside that registration. It, therefore, has effect as a judgment of this Court. The respondent was arrested pursuant to the warrant that was issued and that warrant was extended on 30 January 2003. While in custody the respondent was brought before me on that warrant and orders were made, under the Restraint of Debtors Act, discharging him from custody on condition that he report regularly to the police, that he surrender his passport to the Court and that he be subject to forfeiture of an amount of money if he should breach any of the terms of the order of the court. Those terms were varied with regard to the place and time of reporting 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 YARRALL v Barker

Details

AGLC: YARRALL v Barker [2003] WASC 268
Case: [2003] WASC 268
Decision Date

CaseChat Overview and Summary

The case of Yarrall v Barker involved Mary-Anne Yarrall, the applicant, who sought to enforce a judgment against John Charles Barker, the respondent, which was originally entered in her favour in the High Court of New Zealand. The proceedings were brought before the Supreme Court of Western Australia in chambers. The applicant sought to register the New Zealand judgment in the Supreme Court under the Foreign Judgments Act 1991, which was ultimately successful. However, the primary issue before the court was whether the restraints imposed on the respondent under the Restraint of Debtors Act (1984) should continue.

The court considered whether it was just and equitable to continue the restraints on the respondent, given the circumstances of the case. The respondent had been arrested and released on bail with conditions, including the surrender of his passport and regular reporting to the police. The court noted that the respondent had been made bankrupt in New Zealand and had limited assets in Australia. The applicant had not made any attempts to enforce the judgment for over twelve months. The respondent wished to leave Australia to pursue employment opportunities in Indonesia and the Maldives. The court found that the restraints were intended to facilitate execution rather than serve as a permanent restraint, and that the respondent's desire to leave the country to support his family was a relevant factor.

The court ultimately decided to discharge the restraints imposed on the respondent under the Restraint of Debtors Act. The orders meant that the judgment remained registered and enforceable, but there were no present restraints on the respondent's liberty or actions. The respondent was released from the obligation to report to the police and his passport was returned to him. The applicant was free to attempt to enforce the judgment immediately or in the future or register it elsewhere.

In conclusion, the court found that it was not just and equitable to continue the restraints on the respondent given the length of time that had passed without any attempts to execute the judgment, the limited assets disclosed by the respondent in Australia, and the respondent's understandable desire to leave Australia to pursue employment opportunities. The court discharged the restraints imposed on the respondent and ordered his unconditional release.

Orders