JOHNSON J: By Notice of Motion dated 20 April 2017, the Applicants, Sabi Foods International (Aust) Pty Limited and Uvaraja Hariramakrishnan, seek an order under s.135 Civil Procedure Act 2005 authorising the Sheriff of New South Wales to enter the premises of the Respondent, Sanjeev Khanna, for the purpose of taking possession of goods under a writ of execution.
The background to the present application may be found in a number of judgments of this Court. On 22 July 2016, Hall J made orders in favour of the Applicants with respect to an appeal brought by the Respondent from a decision of the Local Court: Khanna v Sabi Foods International (Aust) Pty Limited [2016] NSWSC 1009. His Honour made an order that day that, unless written application was made to his Honour's Associate within seven days for a different order, the Respondent was to pay the Applicants' costs of the proceedings.
The solicitors for the Applicants made application to Hall J seeking an order under s.98(4)(c) Civil Procedure Act 2005 that the Respondent pay the costs by way of a lump sum in the amount of $20,000.00. Hall J made an order to that effect on 18 November 2016. His Honour noted (in an unreported judgment) that the legal representative for the present Applicants had indicated that the sum of $20,000.00 represented 50% of the costs that would be incurred by his clients if no further appearance was required thereafter in the proceedings. Hall J noted, on the basis of the evidence before the Court, that he was prepared to vary the costs order to make a lump sum costs order and that the sum of $20,000.00 was "a very fair and reasonable amount".
On 8 December 2016, the Applicants filed a Notice of Motion seeking an order that a writ for levy on the property of the Respondent should issue. A writ did issue shortly thereafter.
On 16 December 2016, the Sheriff attempted to execute the writ at the premises of the Respondent at 1 Hambro Avenue, Glenwood. According to the Notice of Non-Levy dated 19 December 2016 (which is before the Court) the Sheriff stated that:
"At the time of attending the premises I formed the belief that there was likely to be property owned by the Judgment Debtor on the premises that may have been able to be seized under the Writ for Levy of Property."
In any event, the writ was not executed on that day. The Respondent was present at the premises on that day.
After the Sheriff's attendance at the premises on 16 December 2016, the Respondent filed a Notice of Motion in the Court on 21 December 2016 seeking six substantive orders. That Notice of Motion came before Fagan J on 10 February 2017. In an unreported judgment delivered that day, his Honour outlined the various orders which were sought by the Respondent. His Honour declined to make any of those orders.
Amongst the orders sought in the Respondent's Notice of Motion was an order that he be allowed to pay by instalments.
Fagan J noted that this was an application pursuant to Part 37 Uniform Civil Procedure Rules 2005 which would normally be heard by a Registrar. However, as the application had come before his Honour and there was evidence filed for that purpose, his Honour determined that rather than remitting the matter to the Registrar he would hear and determine the application to pay by instalments. Evidence adduced on that application included documentary evidence and oral evidence from Mr Khanna.
Fagan J outlined in his judgment the evidence furnished in support of the application to pay by instalments. The application in substance was that the Respondent pay off the sum of $20,000.00 at a rate of $4,000.00 a year, so that it would take five years to pay off this sum. His Honour refused to make this order.
In concluding his judgment, Fagan J said:
"In these circumstances, the judgment debtor has not discharged the onus that rests upon him to justify making an order for instalment payments and I will not make one. The course that is open to the judgment creditor, as earlier indicated, is to proceed with enforcement by more insistent means under the writ for levy of property. If that is unsuccessful and the writ is returned without recovery sufficient to satisfy the judgment debt. then the recourse of the plaintiff will be to issue a bankruptcy notice to the judgment debtor. If he does not satisfy that then application can be made to the Federal Magistrates Court for a sequestration order."
Fagan J dismissed the Respondent's Notice of Motion in all respects and ordered him to pay the costs of the motion which were determined pursuant to s.98(4)(c) Civil Procedure Act 2005 to be in a lump sum of $1,000.00.
On 20 April 2017, the Applicants filed the present Notice of Motion which was returnable before the Court on 1 May 2017. The Notice of Motion was supported by an affidavit of Zacchary Carrigan affirmed 20 April 2017, which evidenced the unsuccessful attempt to execute the writ for levy of property on 16 December 2016.
The Notice of Motion came before Lonergan J as Duty Judge on 1 May 2017. On that day, Ms Leighton appeared for the Applicants and the Respondent appeared in person. Her Honour did not proceed with the hearing of the Notice of Motion on that day and it was stood over until today. It was the case, as her Honour noted, that the Respondent had not filed a further Notice of Motion seeking to pay by instalments, nor had he furnished any evidence in support of such an application.
The application contained in the Notice of Motion filed 20 April 2017 has come before me today as Duty Judge. Once again, Ms Leighton appears for the Applicants and the Respondent appears in person.
Mr Khanna informed the Court that he had filed an affidavit on 4 May 2017. He had not filed a Notice of Motion and he sought to explain that failure upon the basis that he could not afford the filing fee that would be necessary to file a Notice of Motion seeking to pay by instalments. I note that Mr Khanna filed his affidavit of 3 May 2017 electronically on 4 May 2017. If he had appeared in person in the Registry he could, of course, have made an application to postpone any filing fee but that was not a course he chose to take.
There is an issue as to whether Mr Khanna's affidavit of 3 May 2017 was served in a timely fashion upon the legal representatives for the Applicants. I have been informed by Ms Leighton that she was handed a copy of the affidavit by Mr Khanna this morning. She has caused enquiries to be made in her office, and there is no sign that this affidavit was served on the Applicants' legal representatives before this morning. Mr Khanna asserts that it was emailed, but he has no documentary evidence to support that.
In effect, Mr Khanna seeks to revisit his application to pay by instalments. He has not brought an application by the filing of a Notice of Motion, thus there is no application of that type before the Court. I note immediately that such an application was fully argued and determined at a hearing before a Judge of this Court on 10 February 2017, with Fagan J dismissing the application.
The course which I have adopted is to take into account Mr Khanna's affidavit of 3 May 2017, in effect for the purpose of determining whether the Court should move at this stage to make orders as sought by the Applicants in their Notice of Motion.
The position boils down to this. Mr Khanna says: Whereas in February 2017 what he was proposing was that the amount of $20,000.00 be paid out by instalments over a period of five years, he now indicates that the sum of $20,000.00 be paid out over a period of four years. That, of course, does not take into account the further $1,000.00 which was the subject of a costs order made by Fagan J on 10 February 2017.
I have taken into account this aspect in determining whether the Court should move to make the orders sought in the Applicants' Notice of Motion.
Section 135 Civil Procedure Act 2005 permits the Court to give directions with respect to the enforcement of its judgments and orders and, without limiting the terms of s.135(1), the Court may make an order in terms of subsection (2), which includes in s.135(2)(a), an order authorising the Sheriff to enter premises for the purpose of taking possession of goods under a writ of execution.
Rule 39.52 Uniform Civil Procedure Rules 2005 provides that an order under s.135(2)(a) Civil Procedure Act 2005 may not be made in respect of any goods unless the Court is satisfied (a) that while attempting to seize the goods, the Sheriff has been refused entry to the premises where they are believed to be, or (b) that there are special circumstances that justify the making of such an order.
I am satisfied that the Sheriff was refused entry to the premises on 16 December 2016. Accordingly, a foundation exists for the Court to make the order if the Court considers it is appropriate to do so.
These proceedings have a somewhat protracted history. I have already observed that Hall J, on 18 November 2016, made a lump sum costs order in the sum of $20,000.00 in favour of the Applicants, which was considered by his Honour to be "a very fair and reasonable amount". At that point the Applicants (it would seem from Hall J's judgment) had made a significant compromise with respect to the quantum of costs they were seeking to recover from the Respondent.
That order having been made by Hall J, the Applicants took reasonable steps to seek to enforce it. The Respondent then sought orders from the Court on 10 February 2017 and Fagan J, at the conclusion of a hearing on the merits, declined to make any order favourable to the Respondent. His Honour's judgment made tolerably clear what steps may lie ahead for the Respondent.
The Applicants have now taken those steps by way of the present application. The response of the Respondent is to assert a continuing inability to meet the sum, and to suggest that he could pay the sum of $20,000.00 in four years rather than five, if allowed the opportunity to do so.
I am simply not persuaded that the Applicants should be put in the position where the sum of money (which they are owed under this judgment debt) ought be held out for what would be a period of years because of the Respondent's present attitude to the proceedings.
Courts take reasonable steps to accommodate the position of judgment debtors, but there is an outer limit as to the accommodation that the Court should permit.
I note that Fagan J, on 10 February 2017, made a number of findings which indicated a lack of satisfaction as to the adequacy of the Respondent's account of his financial circumstances. What is now suggested by the Respondent is that, despite the complete rejection of his application in February 2017, he would like a chance to pay the sum back over four years rather than five. That, in my view, is not a circumstance which operates in any material way in favour of the Respondent on this application.
I am satisfied that the Court should make orders as sought in the Applicants' Notice of Motion dated 20 April 2017.
[Parties addressed as to costs]
I interrupted this judgment to hear the parties on the question of costs of the present application. As I have mentioned, this Notice of Motion came before Lonergan J as Duty Judge last Monday, 1 May 2017. The Notice of Motion had been framed in a way which sought that it be dealt with ex parte in Chambers. Whether or not that was ever going to be a realistic pathway for this matter to be dealt with (given its history), I note that, in any event, the Applicants' legal representatives served upon the Respondent the Notice of Motion and affidavit, but did not effect service until the morning of 27 April 2017.
A consequence of this was that when the matter came before Lonergan J last Monday, service had not been effected at least three clear days before the return date. This aspect influenced her Honour's decision to stand the matter over to today, as well (as I understand it) as the matters sought to be raised by the Respondent.
In those circumstances, I do not propose to order that the Respondent pay the Applicants' costs of last Monday. Nor, however, do I propose to make an order in the Respondent's favour with respect to the costs of last Monday, or, as he puts it, out-of-pocket expenses.
The bringing of the present application was entirely predictable, having regard to the history of this matter and the various decisions of the Court to which I have referred. It would have come as no surprise at all to the Respondent that such an application was being made, and he has ultimately failed in his resistance to it at the hearing today.
Accordingly, I do propose to order that the Respondent pay the Applicants' costs of today, but that order will not extend to the costs of 1 May 2017.
I make the following orders.
1. Pursuant to s.135 Civil Procedure Act 2005, I make an order authorising the Sheriff of New South Wales to enter the premises of the judgment debtor, Sanjeev Khanna, at 1 Hambro Avenue, Glenwood, for the purpose of taking possession of goods under the writ of execution.
2. I order that the Respondent pay the Applicants' costs of the present Notice of Motion including costs of the hearing today, but that order does not include the costs of 1 May 2017, as to which I make no order as to costs.
[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: 12 May 2017