Klinger v Nicholl

REASONS FOR JUDGMENT MOORE J: 1 I have gratefully read the reasons for judgment of Emmett J in a draft form. Subject to the observations which follow, I agree with his Honour's reasons and conclusions. I agree with the orders he proposes. 2 At [22] and following, Emmett J considers whether the instalment order had been breached and concluded it had been. Accordingly, the entire judgment debt became due and payable. The order required the first monthly instalment payment to be paid on 6 March 2004. The order was made by a Deputy Registrar of the Magistrates Court on 11 February 2004. As his Honour indicates, the evidence suggests that the first instalment payment may have been tendered shortly after 9 March 2004 and, accordingly, the order was not complied with. On the evidence before this Court, this is probably the correct analysis. However, it was on 9 March 2004 that a Magistrate confirmed the order of the Deputy Registrar. We do not have in evidence either the order of the Magistrate or any evidence as to what precisely the Magistrate did other than evidence indicating he confirmed the earlier order. It is conceivable that the order made by the Magistrate relieved the appellant of the obligation he had earlier had to pay the first instalment by 6 March 2004. However, it is also conceivable that in confirming the order, the Magistrate was confirming all aspects of it including the default mechanism operating if an instalment was not made on the due date. On that latter approach, the confirmation meant very little, because the appellant was by then obliged to pay the balance of the judgment debt because he had not paid the first instalment by 6 March 2004. But the evidence does not enable any conclusion to be reached about these matters. 3 I should, when discussing this matter, indicate I agree with Emmett J that the language of the primary judge in the Federal Magistrates Court of Australia in the judgment to which this appeal relates, was intemperate. The primary judge said (at [37] and [38]): The instalment order made by the deputy registrar of the ACT Magistrates Court and confirmed by a magistrate is ludicrous. It does not even come near meeting the interest.… …It is bizarre that such an instalment order was made in these circumstances and then upheld by an ACT Magistrate. To have described an order made in another court as "ludicrous" and the process as "bizarre" is unnecessary and possibly offensive. Almost certainly the primary judge did not have before him all the material that had been before the ACT Magistrates Court. His Honour certainly did not hear the submissions made to that Court. It was inappropriate for his Honour, in my opinion, to gainsay the exercise of the discretionary power by the ACT Magistrates Court and particularly to do so in the terms he did. 4 Lastly I should say something about circumstances where a sequestration order is made, based on a judgment debt, in the face of an earlier order that the judgment debt could be paid by instalments. One could imagine many cases where the fact that a person had to apply to pay a judgment debt by instalments might manifest that person's inability, more generally, to pay debts as and when they fall due. However, there may be cases where the judgment debtor has no other debts, might well be solvent and is able to obtain an instalment payment order because, for example, he or she had a modest income stream from, say, a pension. In the latter case, the judgment debtor may be able to establish, for the purposes of s 52(2)(a)of the Bankruptcy Act 1966 (Cth), that he or she was able to pay his or her debts. That would be because, in relation to the judgment debt, the judgment debtor had the benefit of an order permitting the debt to be satisfied by instalments. But the appellant's case was not conducted on that basis before the primary judge or on appeal.