defendant. The Court allowed the review of the Registrar's decision of 23 December 2019; ordered the second judgment debtor, Mark Alexander Erber, to pay $11,000 per month on the 10th of each month commencing...
Key principles
An instalment order should not be made if the judgment debtor's means are sufficient to enable payment of the judgment immediately and in full; however, where there is no...
A Registrar may refuse an application to pay by instalments where required particulars (including particularisation of disclosed assets) are not provided, but that refusal can be...
The overarching objective in considering an instalment order is that the judgment debt be paid in full to the judgment creditor; this objective supports making an instalment...
Issues before the court
Whether the Registrar erred in refusing the judgment debtor's application to pay the judgment by instalments because the financial statement failed...
Whether a corporate judgment debtor's instalment application must be made on the corporate form and whether absence of a corporate-form application...
What costs order is appropriate on a review of a Registrar's refusal of an instalment application?
Plain English Summary
After a judgment for $244,249.75 was entered for the plaintiff, the defendants sought to pay by instalments. The Registrar refused because the applications lacked required particulars and the corporate application form. On review the District Court ordered further evidence, found no proof the personal defendant could pay immediately, and that the revised plan would pay the judgment in full within two years. The Court allowed the review, made an instalment order requiring the personal defendant to pay $11,000 per month from 10 February 2020 until the judgment was satisfied, and ordered each party to bear their own costs.
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Deep Dive
1,695 words · generated 15/06/2026
What happened
On 5 November 2019 Taylor DCJ gave judgment for the plaintiff, Mr Mark Lawrence Gadd, against two defendants (Australia Business Executive Investments Pty Ltd and Mr Mark Alexander Erber) for $244,249.75 and ordered costs on specified bases [1]. The defendants sought to pay that judgment by instalments. The first applications, filed 5 December 2019, suffered two principal defects: the corporate defendant's application was not on the corporate form and the personal defendant did not particularise the category described as "other personal property" (disclosed as $50,000) [2], [3]. The Principal Registrar refused the application on 6 December 2019 for those reasons.
Cited legislation
No linked legislation citations have been extracted yet.
A second application, filed 20 December 2019 and directed at the personal defendant, proposed an instalment plan that would pay the judgment in full with interest at the statutory rate over about two years. The Registrar again refused on 23 December 2019 because the 'other personal property' remained unparticularised and the corporate form omission persisted for the corporate defendant [3]. The plaintiff then issued a bankruptcy notice (12 December 2019).
The defendants sought review of the Principal Registrar's refusal. The matter came before Neilson DCJ who identified multiple evidentiary deficiencies, made orders to cure them, and heard further affidavit material and revised financial statements directed to the corporate defendant and the personal defendant [5]. After assessing the evidence and the authorities about instalment orders (including Hellier, Chint and others), the Court allowed the review, found there was no evidence the personal defendant could pay the judgment immediately and in full, and made its own instalment order requiring Mr Erber to pay $11,000 per month commencing 10 February 2020, with the final payment to discharge the balance due on 10 January 2022. The Court ordered each party to pay their own costs of the review application [6], [7], [8].
Why the court decided this way
Three core considerations drove the decision.
Primacy of paying the judgment in full: The Court reiterated that the paramount objective in assessing instalment applications is that the judgment debt be paid in full so the judgment creditor receives the 'fruit of his victory' [4]. An instalment order is acceptable if it secures full payment within a reasonable timeframe.
Absence of evidence of immediate capacity to pay: The authorities state that an instalment order should not be made if the judgment debtor has means sufficient to pay the judgment immediately and in full (the Court cited McDougall J in Hellier at [8] for that principle) [3]. In this case the Court found no credible documentary evidence proving the personal debtor had the present means to discharge the judgment immediately. The affidavit statements about income were unsupported by bank statements, employer or company financial records, so the Court accepted that the debtor did not demonstrate capacity to pay immediately [3].
Registrar's procedural refusal could be remedied: The Principal Registrar refused because of non‑compliance with prescribed forms and lack of particularisation. The Court treated those defects as curable. It made directions to obtain the missing material, received further particulars (including a corporate statement showing no corporate assets and particulars reducing the realistic value of the 'other personal property' to $8,000–$10,000), and concluded the proposed payment plan would result in full payment within two years. Given those facts, and the absence of immediate means, the Court concluded it was appropriate to allow the review and impose an instalment order [5], [6], [7].
The combination of those three considerations led to substituting the Registrar's refusal with a Court-ordered instalment plan.
Before and after state of the law
Before this decision: The governing principles were already settled by authorities cited to the Court. Hellier (McDougall J), Chint (Einstein J) and Leondarias establish that an instalment order should not be made where the debtor can immediately pay in full, and that registrars may refuse non‑complying applications. Subsequent cases (Re Australian Institute of Fitness, SRG Civil) elaborate procedural and discretional considerations. The District Court adopted those principles and applied them to the present facts.
After this decision: The case does not change the legal test. It confirms that a Registrar's refusal for lack of particularisation and form compliance is not absolute. Where defects can be cured and the court is satisfied that the debtor lacks present capacity to pay and the proposed plan secures full payment in a reasonable time, the Court will allow a review and can substitute an instalment order. Practitioners should therefore treat Registrar refusals as reviewable where remedial compliance and substantive sufficiency are achievable.
Key passages with plain-English translation
"There is no evidence tendered to support the estimate made by the judgment debtor about his income or its source." [3]
Plain English: The debtor made claims about his income but provided no bank statements, payslips, company payments or other documents to prove them. The Court will not accept bare assertions without supporting documents.
"The authorities make it abundantly clear that the important thing is for the judgment debt to be paid in full to the judgment creditor because in that way the judgment creditor obtains the fruit of his victory in court." [4]
Plain English: The court's job is to ensure the creditor gets paid. If an instalment plan does that within a reasonable time, it is preferable to insisting on immediate payment which may be impossible.
"For those reasons I allow the review of the decision of the Registrar made on 23 December 2019..." [6]
Plain English: After considering the evidence and the law, the Court overturned the Registrar's decision refusing the instalment application.
"I order the second judgment debtor ... to pay ... $11,000 per month ... commencing on 10 February 2020 ... final payment ... on 10 January 2022." [7]
Plain English: The Court set the instalment schedule that the personal defendant must follow to fully pay the judgment within the specified timeframe.
"In the circumstances I believe the appropriate order is that each party should pay his own costs..." [8]
Plain English: Because of the procedural history and the remedial steps the Court ordered, neither side gets costs for the review hearing.
What fact patterns trigger this precedent
This decision is most relevant where:
The judgment debtor applies to pay by instalments but the Registrar refuses on procedural grounds (missing corporate form, insufficient particularisation of assets).
The debtor claims income by affidavit but provides little or no documentary proof (no bank records, company payments, payslips).
The debtor's proposed instalment plan would, if adhered to, pay the judgment in full within a reasonable period (here, about two years).
There is concern about assets disclosed generically (eg "other personal property") without particularisation; the Court is prepared to receive further particulars and re‑evaluate the Registrar's decision on a review.
The judgment creditor has not yet had costs assessed and the debtor proposes a plan to pay the principal and interest; the Court may leave costs for later applications.
If the facts mirror these conditions, a practitioner should expect that a Registrar's administrative refusal can be reviewed and potentially overturned provided the applicant can cure defects and show inability to pay immediately.
How later courts have treated it
This decision itself is a single-district court review applying established Supreme and Federal Court authorities. It does not purport to set novel law. Later courts (noting the authorities cited within the judgment) are likely to view it as an example of the court's willingness to cure procedural defects and make instalment orders where substantive justice (full payment within a reasonable time) is satisfied. Practically, the decision demonstrates two consistent themes courts endorse: (a) the necessity of documentary proof of income and assets when asserting inability to pay; and (b) the pragmatic approach to Registry refusals, review is available, and courts will impose tailored instalment terms if satisfied the judgment creditor's recovery will not be compromised.
Practitioners should note that appellate or later supervisory courts will continue to apply the core rule: no instalment order where immediate full payment is possible. This District Court decision sits comfortably within that framework and will be treated as procedurally illustrative rather than doctrinally transformative.
Still-open questions
Quantum of proof required for 'inability to pay immediately': The decision reinforces the need for documentary proof but leaves open the precise threshold of corroboration (what combination of bank statements, company records, or other material will satisfy the Court in marginal cases). The Court criticised absence of documentary proof but did not set a minimum evidentiary package.
Treatment of informal family arrangements and non-salary remuneration: The debtor here described informal arrangements with a family business (no formal salary), and the Court was sceptical without documentary proof. The decision does not specify how courts should treat reliably evidenced but non‑standard income (eg informal distributions, periodic family payments) and what proof will suffice.
Enforcement and default consequences: The Court noted that if the debtor defaults the judgment creditor has other remedies, but it did not explore the mechanics of enforcement against an instalment order or whether additional securities (eg security over assets) might be necessary in borderline cases.
Interaction with bankruptcy notices and insolvency risk: The plaintiff issued a bankruptcy notice during the process. The decision does not elaborate on how pending insolvency steps (bankruptcy notices, sequestration applications) affect the Court's assessment of instalment proposals.
Costs sequencing regarding future costs assessments: The Court left costs for later consideration and suggested that obtaining another instalment order for costs may be difficult. The practical management of costs assessment once an instalment plan is in place remains an area requiring tactical carefulness.
Conclusion
Gadd v Australia Business Executive Investments Pty Ltd is a practical District Court application of established principles on instalment orders: registrars may refuse inadequate applications, but courts will allow review and impose an instalment order where the debtor cannot show immediate capacity to pay and the proposed plan secures full payment within a reasonable time. The decision is a reminder to practitioners to file properly‑particularised financial statements with documentary backing, to use the correct corporate forms, and to be ready to cure defects on review.
Judgment (2 paragraphs)
[1]
Judgment
HIS HONOUR: On 5 November 2019 Taylor DCJ gave judgment for the plaintiff, Mr Mark Lawrence Gadd against each of Australian Business Executive Investments Pty Ltd, the first defendant, and Mark Alexander Erber, the second defendant, for $244,249.75. His Honour also ordered the defendants to pay the plaintiff's costs of the proceedings on the ordinary basis until 4 December 2018 and thereafter on an indemnity basis.
On 5 December 2019 the defendants filed a notice of motion seeking to pay by instalments. The actual notice of motion is headed "Notice of Motion to Pay by Instalments Individual", albeit that the orders sought were that the judgment debt be paid by the judgment debtors jointly and severally by way of instalments. The notice of motion was supported by an affidavit of Mark Alexander Erber sworn on 5 December 2019 in which he averred on oath that the information about his present income, assets and liabilities was true. The application was supported by a financial statement of the first defendant but that was on the incorrect form. The form used was for an individual rather than for a corporation. The application was also supported by a financial statement of Mr Alexander Erber in which he disclosed that his average weekly income, after tax, from salary or wages was $3,500 and that all other income was $1,700 per week giving a total weekly income of $5,200. He disclosed that he had $5,000 as funds in banks or financial institutions, a motor vehicle worth $50,000, household contents worth $150,000 and "other personal property" worth $50,000. He estimated that his total living expenses were $2,600 per week. He said that he had dependent upon him one son aged 15 years.
That application was rejected by the Principal Registrar on 6 December 2019. The Registrar's reasons pointed out that the application by the first defendant was refused because it had not been made on the corporate application form and did not disclose, in any event, any income. As far as the second defendant was concerned the registrar's reasons went to say this:
"The 'other personal property' in respect of vehicle, an amount of $50,000, has been disclosed but has not been particularised. Paragraphs 2, 4, 6 of the payment plan indicate amounts that appear to exceed the second defendant's wherewithal to pay. In relation to pars 3 and 5, the second defendant appears to have the wherewithal to pay more than the amount offered. Additionally, the payment plan does not appear to include the payment of interest in accordance with s 13G [sic] of the Civil Procedure Act 2005. Application refused."
On 12 December 2019 the plaintiff/judgment creditor issued a bankruptcy notice to Mr Alexander Erber. On 20 December 2019 the defendants again filed a Notice of Motion to Pay by Instalments Individual. However, the document only refers to one judgment debtor and clearly refers to Mr Alexander Erber. The payment plan proposed was different to that originally proposed. It proposed the payment of $11,000 on the 21st day of each month commencing on 21 January 2020 with the last payment being on 21 December 2022, that payment not being for $11,000 but for $10,639.22 which would result in the judgment being paid in full together with interest thereon at the rate of 7.5% per annum as required by the Act.
On this occasion the financial statement particularised the motor vehicle as being a 1985 Mercedes Benz 380SL and provided other details of the vehicle. However, "other personal property" was not particularised. Again the judgment debtor said that he had dependent upon him one son aged 15 years. The Principal Registrar refused that application. On 23 December 2019. The Principal Registrar pointed out that there was no application by the first defendant on the corporate form of application, the same reason that was given to the initial application. The Principal Registrar's reasons continue thus:
"The application by the second defendant that was filed on 05/12/19 did not particularise the 'other personal property' in respect of which the sum of $50,000 was disclosed. This was one of the reasons for the refusal of the application filed on 05/12/19. The application filed on 20/12/19 also does not particularise the 'other personal property' in respect of which $50,000 has been disclosed. The application is refused."
The current proceedings are a notice of motion seeking a review of the reasons of the Registrar of 23/12/2019. Lest it be thought that I am being schizophrenic when I refer "the Registrar" both the decisions of 6 December 2019 and 23 December 2019 purport to be made by the Principal Registrar yet the review is sought in respect of orders made by Assistant Registrar Grew on 23 December 2019.
When the matter came before me with the reasonable estimate of a half hour last Friday it became clear that there were a number of deficiencies in the evidence. To try to cure that I made certain orders and stood the matter over to today. The second judgment debtor, Mr Alexander Erber, has sought to comply with those orders. Firstly, he has prepared a financial statement on behalf of the first judgment debtor, Australian Business Executive Investments Pty Ltd, which discloses its having no income, no assets and no liabilities. In fact, it does have a liability which is the judgment debt. Although Mr Hemsworth, who appears for the judgment debtors, made it clear that he is only making the application in respect of the second judgment debtor, I ordered that the financial statement be prepared to see if there were some assets that might be available to the first judgment debtor. Apparently there is none.
The affidavit prepared to obey the order that I made last Friday, and tendered this morning, raises a number of issues. The personal judgment debtor describes himself as a "chief executive officer" and that would appear to be as his role in respect of Golden Robot Records Worldwide Pty Ltd, which he describes as a family business of which the director is his wife, Anna, but the corporate search indicates that his wife is not a shareholder and that the shareholder is another company, King Rock N Roll Pty Ltd of the same address, namely, 39 Jones Street, Ultimo. The relevant paragraphs in the affidavit are these:
"GRRW is a family business. I work within the business as the chief executive officer. I do not draw a salary and there is no formal agreement. It is an agreement between myself and my wife.
The amount of income I have included in my financial statements represents what I estimate to be an average of the amount of money I obtain from the business.
The agreement between myself and my wife has been in place for the last two years and assists me support my two teenage children from a previous marriage who also reside with us."
The affidavit does not formally state that the judgment debtor has dependent upon him two teenage children and the application only states that he has one dependent child. He may have a second teenage child living at home who earns money but, as a father of a 29 year old boy living at home, I can assure one that children never cease to draw on their parents' income if they can.
There is no evidence tendered to support the estimate made by the judgment debtor about his income or its source. There are no financial statements either from his own bankers showing money being paid into an account nor is there any evidence from GRRW showing payments leaving its account which might be destined to the judgment debtor and/or his wife, Anna. The evidence is unsatisfactory in that regard.
As far as the "other personal property", pars [9] to [12] indicate what that personal property is and it is clear that it represents replacement value and the actual value of the property is only an amount of between $8,000 and $10,000. Despite references to the evidence given at the trial before Taylor DCJ by the personal judgment debtor, he says that he currently has no interest in any corporation other than ABEI Pty Ltd, the first judgment debtor.
I have been referred to the decision of McDougall J in Hellier Capital Pty Ltd v Richard Albarran [2009] NSWSC 403, the decision of Barrett AJA in Re Australian Institute of Fitness (Vic & Tas) [2016] NSWSC 1143 and SRG Civil Pty Ltd v Brolton Group Pty Ltd [2018] NSWSC 618 a decision of N Adams J. They set out the principles applicable to making an instalment order. At [8] of Hellier Capital Pty Ltd v Albarran McDougall J pointed out that, "An instalment order ought not be made if the judgment debtor's means are sufficient to enable him or her to pay the judgment immediately and in full". His Honour referred to the decision of Einstein J in Chint Australasia Pty Ltd v Cosmolouce Pty Ltd [2008] NSWSC 1054 and Leondarias v KGB Design and Construction Pty Ltd [1998] FCA 1354. In the current matter there is no evidence that Mr Alexander Erber has the ability to pay the judgment debt immediately and in full and the current payment plan allows for the whole of the judgment debt, together with interest thereon, to be paid over a period of two years.
The authorities make it abundantly clear that the important thing is for the judgment debt to be paid in full to the judgment creditor because in that way the judgment creditor obtains the fruit of his victory in court. Although the application that has been made can be criticised in many respects, as I have sought to point out to Mr Kozlowski, who appears for the judgment creditor, that the proof of the pudding is in the eating and if the personal judgment debtor does adhere to the instalment order that his client will receive the fruit of the judgment in the next two year period but if there be default the judgment creditor has his remedies elsewhere.
It has been submitted that the instalment order plan does not allow anything for the costs of the plaintiff/judgment creditor which are yet to be agreed or assessed, but, when they have been agreed or assessed, the judgment debtor, if he still have no capital to pay a large judgment debt, can make a further application for a second instalment order. Bearing in mind the evidence put before me on this application it may be very difficult for him to obtain another instalment order for the payment of the costs but that is a question that has to be considered by the personal judgment debtor and his solicitors and not by the Court. What is currently before the Court is, in my view, an appropriate way of satisfying the judgment debt over a reasonable period of time.
For those reasons I allow the review of the decision of the Registrar made on 23 December 2019, which was notified by the Registrar on 8 January 2020.
I order the second judgment debtor Mark Alexander Erber to pay to the judgment creditor the sum of $11,000 per month on the 10th day of each month commencing on 10 February 2020 until the judgment be paid in full together with interest thereon the final payment to be made paying the outstanding balance of the judgment debt on 10 January 2022.
I have now heard the parties on the question of costs. The judgment creditor was not heard by the Registrar in respect of either Notice of Motion to pay by instalments. The judgment creditor was bound to appear before the Court in answer to the current notice of motion seeking a review of the decision of the Registrar made on 23 December 2019. One can understand, in light of the deficiencies in the evidence, why it was opposed by the judgment creditor. I would point out that the application has only been successful because the orders that I made last Friday, to put the matter in some state where there had compliance with the earlier orders made by the Registrar, and compliance with the rules. In the circumstances I believe the appropriate order is that each party should pay his own costs of the current notice of motion.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 27 March 2020
Parties
Applicant/Plaintiff:
Gadd
Respondent/Defendant:
Australia Business Executive Investments Pty Limited
The Court allowed the review of the Registrar's decision of 23 December 2019; ordered the second judgment debtor, Mark Alexander Erber, to pay $11,000 per month on the 10th of each month commencing 10 February 2020 until the judgment and interest are paid in full, with the final payment on 10 January 2022; ordered that each party pay their own costs of the current notice of motion [6], [7], [8].