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[2025] NSWCA 236
appellant. Leave to appeal was granted; the appeal was allowed; the primary judge's orders of 26 February 2025 were set aside; the respondent's notice of motion filed 31 July 2024 was dismissed; the...
The Court of Appeal held that suing on an existing judgment is a recognised legal route and is not automatically abusive just because direct enforcement was also possible. The appellants had started their action within the limitation period. The respondent did not establish that the delay caused manifest unfairness or prevented a fair trial, and the Court found no separate feature making the proceedings abusive. The enforcement provisions in Pt 8 of the Civil Procedure Act did not exclude an action on a judgment. The appeal was allowed and the respondent's dismissal motion was rejected.
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In March 2006, three District Court proceedings resulted in money judgments for the present appellants, Glenda and Colin Shreeve, C&G Building Consultants Pty Ltd, and Malachi Corporation Pty Ltd, against Raymond Jourdan. The claims arose from payment and guarantee obligations connected with a deed dated 19 December 2003. The relevant judgments were not paid. The appellants did not then take enforcement action. The reasons record that both sides experienced financial difficulties, that the appellants thought there was a low prospect of recovery and did not wish to incur enforcement costs, and that there was no communication between the parties from 2006 to 2018 [5]-[10].
After learning in 2017 that Mr Jourdan was living in Sydney, the appellants obtained legal advice and commenced proceedings in the Supreme Court on 16 March 2018. That was four days before the 12-year period relevant both to an action on the judgments under s 17 of the Limitation Act 1969 (NSW) and to applications for enforcement orders under s 134 of the Civil Procedure Act 2005 (NSW) [11]-[13]. The practical significance was that direct enforcement after 20 March 2018 would require leave, while an action on the judgments still could be commenced within its limitation period.
The appellants obtained a default judgment in July 2018. It was entered as one judgment for $764,442.04 in favour of all appellants, although the pleaded claims concerned separate parties and debts. In July 2024, after a bankruptcy notice was issued and the respondent's solicitors identified the defect, the default judgment was set aside by consent and the bankruptcy notice withdrawn [16]-[18].
Mr Jourdan's defence and motion relied on abuse of process. He accepted that an action on a judgment remained a cause of action; his contention was that using it was abusive because the appellants could have used enforcement procedures and thereby avoided the Civil Procedure Act's time restriction and leave requirement [19]-[22], [28]-[37]. The primary judge accepted the circumvention argument and dismissed the proceedings. The Court of Appeal, with Payne JA and Kirk JA agreeing with Free JA, granted leave and allowed the appeal. It set aside the primary judge's orders and dismissed the respondent's motion [1]-[3], [79].
The Court treated two questions as distinct. First, did a cause of action on the judgments exist? Second, even if it did, did the way the appellants used it make the proceedings an abuse of process? The respondent conceded the first question, and the Court reviewed the law supporting it [21]-[22], [41]-[48].
The Court described the cause of action as arising where a judgment requires payment of a specified sum. The judgment debt creates a new obligation that may itself be sued on [41]-[43]. Although actions on domestic judgments had become unusual as enforcement procedures developed, the Court said the cause of action remained recognised [47]-[48]. It did not treat the cause of action as merely another form of execution under Pt 8.
On abuse of process, the Court accepted that an action on a judgment can be abusive in an appropriate case, even when commenced within time. But the Court required some feature beyond the inherent effect of bringing an action on a judgment [64]. The mere fact that the new action could eventually produce a new judgment, with a further period in which recovery might be pursued, did not itself supply that additional feature. Otherwise, the recognised cause of action would be treated as inherently abusive whenever it had the ordinary consequences of its use [74]-[76].
The Court also addressed delay. It considered the effect of the delay, including whether the respondent could demonstrate prejudice or inability to have a fair trial, rather than treating the years elapsed as sufficient by themselves. The primary judge had rejected the respondent's complaints of prejudice, including the complaint concerning interest and the possibility of a fair trial [24]-[27]. On appeal, the Court concluded that the respondent could not show manifest unfairness from the delay since 2006 [66].
The appellants had commenced the action within the limitation period. The Court rejected the characterisation of this as “avoiding” the limitation period: it was bringing an available action within the permitted time [67]-[71]. The fact that it was commenced only days before the deadline did not, without evidence of oppression, unfairness, or misuse of the court's processes, establish abuse [71]-[74].
Finally, the Court rejected the claim that Pt 8 created an exclusive route. Section 134 sets a time limit for specified applications to enforce a judgment, with leave available after the prescribed period. But the Court found no legislative intention, in the text, context, or purpose of Pt 8, to exclude an action on the judgment [75]. Section 17 of the Limitation Act recognised the action, and s 138(1) of the Civil Procedure Act expressly preserved other manners of enforcing a judgment [57]-[58], [77]. The Court considered that an action on a judgment was legally distinct from direct enforcement of the original judgment [76].
The judgment did not announce that actions on judgments were newly created. It affirmed that the common law continued to recognise them despite the development of modern enforcement procedures and despite their relative rarity [41]-[48]. The relevant pre-existing distinction was between suing on the judgment debt as a cause of action and applying for execution or other enforcement mechanisms in respect of the original judgment [44]-[46].
The reasons discuss cases in which a separate statutory scheme did prevent an action on a judgment. In Berkeley v Elderkin, the legislation governing County Court judgments created particular arrangements and protections, and the court concluded that the legislature intended remedies to be confined to those in that statute [51]-[53]. Greville v Bird applied a similar approach to earlier New South Wales District Court legislation, which allowed payment by instalments and protected some property from seizure [54]. The Court distinguished those cases from the present statutory setting. It found no comparable scheme or protection shown to be defeated by the action on the 2006 judgments [78].
By contrast, Duffy v De Rozzoli was discussed as an example where no relevant statutory restriction or lost protection prevented an action on a judgment [55]. The Court also relied on the reasoning in O'Mara Constructions Pty Ltd v Avery concerning the legislative understanding behind s 17 of the Limitation Act [58].
The decision clarifies the relationship between the two regimes in this case: s 134 governs certain direct enforcement applications, but does not extinguish the separate cause of action recognised by s 17. Nor does the ordinary possibility of obtaining a later judgment after suing on an earlier judgment establish circumvention or abuse by itself [75]-[78]. The decision does not state that abuse can never arise. It expressly preserves the possibility that an action on a judgment may be abusive in particular circumstances [64].
At [48], Free JA concluded that “the law has continued to recognise the availability of an action on a judgment.” In plain English, the fact that this legal route is now unusual does not, on its own, mean it has disappeared.
At [64], the Court said there must be a feature of the proceedings that justifies finding abuse “over and above the inherent characteristics of the cause of action itself.” This means the ordinary consequences of suing on a judgment, including the chance of a later judgment, are not enough by themselves.
At [66], the Court said the focus in a delay argument is the delay's effect, particularly on the trial, rather than simply the passage of time. The practical question is whether the delay has caused unfairness or impaired a fair hearing, rather than how many years have passed in isolation.
At [71], the Court rejected the idea that commencing just before the limitation deadline was “avoiding” the period. Its characterisation was that the appellants brought an available action within the time allowed. This was an application of the limitation period to the facts, not a general statement that timing can never contribute to abuse.
At [75]-[77], the Court explained that Pt 8 was not intended to be the sole mechanism for responding to a judgment. Section 138(1) was important because it says Pt 8 does not limit other manners of enforcement. The Court considered an action on a judgment distinct from enforcement of the original judgment itself.
At [38], the Court emphasised that a permanent stay for abuse is an exceptional, last-resort response. That proposition framed the scrutiny applied to the primary judge's decision to dismiss the proceedings.
The decision is most directly relevant where a judgment creditor brings a timely action on an existing money judgment, while the original judgment could instead be enforced through statutory procedures. It is particularly relevant where the defendant argues that the new action is abusive because it may produce a fresh judgment and extend the practical period for pursuing recovery [62]-[64], [74]-[77].
It also addresses allegations that a plaintiff abused process by commencing close to the end of a limitation period. The judgment indicates that proximity to expiry is not, without more, equivalent to evasion. A court considering abuse will look for evidence of unfairness, oppression, improper purpose, prejudice, or another feature of the particular proceedings that goes beyond the ordinary consequences of the cause of action [64]-[74].
The decision may also be relevant to delay-based abuse arguments. The Court's approach asks what the delay did to the fairness of the proceedings, rather than treating elapsed time as conclusive. Here, the respondent could not establish manifest unfairness or inability to conduct a fair trial, and the primary judge had rejected the asserted prejudice [24]-[27], [66].
The boundaries matter. The Court did not decide that every action on a judgment is proper. It recognised that abuse may arise in a particular case, and referred to examples involving overlapping enforcement proceedings and conditions imposed to manage enforcement of a second judgment [61]. It also distinguished cases where a special legislative scheme confined remedies or protected judgment debtors [51]-[55], [78]. The outcome is tied to the statutory provisions and evidentiary findings addressed in this judgment.
The judgment was delivered on 28 October 2025. The supplied judgment contains no later judicial treatment of Shreeve v Jourdan, and no later authorities are identified as having applied, distinguished, or otherwise considered it. Any account of subsequent treatment would therefore require sources beyond the judgment supplied here.
Within this judgment, the Court applied earlier High Court and New South Wales Court of Appeal authority on abuse of process and delay. It relied on GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore for the exceptional nature of a permanent stay, the correctness standard on appeal, and the need to assess delay by its effect [38], [64], [66]. It also applied Moubarak by his tutor Coorey v Holt when explaining the focus on the effect of delay [66]. Those are authorities applied by Shreeve, rather than later treatment of Shreeve itself.
The Court considered English and Australian authorities concerning actions on judgments, including Bennett v Royal Bank of Scotland and ED & F Man (Sugar) v Haryanto [56], and distinguished the statutory contexts in Berkeley v Elderkin and Greville v Bird [51]-[54]. Those discussions explain the reasoning in Shreeve but do not establish how later courts have treated its holding.
The Court did not determine the respondent's possible argument concerning bankruptcy notices. A new judgment might have created a fresh six-year period for issuing a bankruptcy notice, whereas the period connected with the 2006 judgments had expired. The primary judge did not reach a concluded view on that point, and the respondent did not pursue it on appeal as an alternative basis for upholding the orders. The Court therefore said it was unnecessary to consider it further [39]-[40]. Its potential significance in a future case remains unresolved by this decision.
The Court also did not define a comprehensive test for every circumstance in which an action on a judgment might become an abuse. It stated the controlling requirement in general terms: there must be a feature beyond the inherent characteristics of the cause of action [64]. The identified examples show that overlapping enforcement activity, particular conditions for enforcement, or special statutory protections may matter, but the judgment does not set out an exhaustive catalogue [51]-[55], [61], [78].
The decision does not resolve how a court should manage every case in which there is concurrent enforcement of an original judgment and litigation on that judgment. The Court referred to English cases where conditions were used to avoid abuse arising from overlap, but the present case did not involve that factual situation in the same way [61]. Nor did the Court determine the merits of the appellants' underlying claims or the defective default judgment. Its orders dismissed the respondent's interlocutory motion and restored the proceedings, rather than finally deciding those claims [16]-[18], [79].
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Shreeve v Jourdan [2025] NSWCA 236
Hearing dates: 13 August 2025
Date of orders: 28 October 2025
Decision date: 28 October 2025
Before: Payne JA at [1]
Kirk JA at [2]
Free JA at [3]
Decision: (1) Leave to appeal is granted.
(2) The appellants are to file within seven days a notice of appeal in the form filed as a draft notice of appeal on 23 May 2025.
(3) Appeal allowed.
(4) The orders of the primary judge of 26 February 2025 are set aside and in lieu thereof the following orders are made:
(a) The notice of motion filed 31 July 2024 is dismissed.
(b) The defendant is to pay the costs of the plaintiffs on the notice of motion.
(5) The respondent is to pay the appellants’ costs.
Catchwords: CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Abuse of process – Actions on judgments prior to expiry of deadline for enforcement – Proceedings brought four days before expiry of limitation period – Whether bringing an action on a judgment instead of enforcing the judgment debt is necessarily an abuse of process – No manifest unfairness or oppression from mere delay
LIMITATION OF ACTIONS – Action on a judgment – Interaction with enforcement provisions in Civil Procedure Act 2005 (NSW), Pt 8 and Limitation Act 1969 (NSW), s 17 – Whether commencement of action on judgment circumvents time restrictions which would otherwise apply – No circumvention
Legislation Cited: Bankruptcy Act 1966 (Cth), s 41
Civil Procedure Act 2005 (NSW), ss 67, 101, 102, 103, 106, 133, 134, 138
County Courts Act 1846 (9 & 10 Vict c 95), s 100
District Courts Act 1858 (NSW), ss 76, 80
District Court Act 1973 (NSW)
Limitation Act 1969 (NSW), s 17
Limitation Act 1958 (Vic), s 5
Limitation Act 1980 (UK), ss 17, 24
Limitation of Actions Act 1974 (Qld), s 31
Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Cases Cited: Bennett v Royal Bank of Scotland [2004] EWCA Civ 988
Berkeley v Elderkin (1853) 1 E & B 805
Blair v Curran (1939) 62 CLR 464; [1939] HCA 23
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Dennehy v Reasonable Endeavours Pty Ltd (2003) 130 FCR 494; [2003] FCAFC 158
Duffy v De Rozzoli (1887) 8 LR (NSW) 153
ED & F Man (Sugar) v Haryanto (Court of Appeal Transcript 17 July 1996)
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32
Greville v Bird (1867) 6 SCR (NSW) 253
Habib Bank Ltd v Central Bank of Sudan [2014] EWHC 2288 (Comm)
Herron v McGregor (1986) 6 NSWLR 246; 28 A Crim R 79
Kuwait Oil Tanker Company SAK v Al Bader [2008] All ER D 165; EWHC 2432 (Comm)
Lowsley v Forbes [1998] 3 WLR 501
Mason v Nicholls (1845) 14 M & W 118
Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
O’Mara Constructions Pty Ltd v Avery (2006) 151 FCR 196; [2006] FCAFC 55
Williams v Jones (1845) 13 M & W 628; 153 ER 262
Texts Cited: KR Handley, Spencer Bower and Handley, Res Judicata (6th ed, 2024, LexisNexis)
Category: Principal judgment
Parties: Glenda Alice Shreeve (First appellant)
Colin Bruce Shreeve (Second appellant)
C&G Building Consultants Pty Ltd atf C&G Unit Trust (Third appellant)
Malachi Corporation Pty Ltd (Fourth appellant)
Raymond Brendan Jourdan (Respondent)
Representation: Counsel:
E Finnane (Appellants)
L Beange (Respondent)
Solicitors:
Uther Webster & Evans (Appellants)
Results Legal (Respondent)
File Number(s): 2025/106750
[This headnote is not to be read as part of the judgment]
In March 2006, the appellants, Mr and Mrs Shreeve and two associated companies, obtained judgments in their favour in the District Court against the respondent, Mr Jourdan, requiring the payment of various sums in connection with failed property development projects. The debts were not paid and no enforcement action was taken. In March 2018, four days before the expiry of the relevant limitation period, the appellants commenced proceedings in the Supreme Court, relying on the available causes of action on the judgments (2018 Supreme Court Proceedings). At the time those proceedings were commenced the prescribed period of 12 years for applying for enforcement orders in respect of the judgments (absent leave to apply out of time) was also due to expire in four days. The practical effect of commencing the 2018 Supreme Court Proceedings was to extend the period within which the appellants might be able to recover the money owed, in circumstances where the usual period for taking action to enforce the judgments would otherwise have passed and leave would have been required to apply for enforcement orders.
On 17 July 2018, the appellants obtained a single default judgment against the respondent for $764,442.04. No parties took any further action until May 2024. On 6 May 2024, the appellants caused a bankruptcy notice to be issued. This was subsequently withdrawn and the default judgment set aside by consent on the basis that it was defective. The respondent moved for a stay or summary dismissal of the 2018 Supreme Court Proceedings on the basis that they were an abuse of process. The primary judge held in the respondent’s favour and dismissed the proceedings, on the basis that the proceedings “circumvented” time restrictions which would otherwise apply to the underlying claims under s 17 of the Limitation Act 1969 (NSW) and s 134 of the Civil Procedure Act 2005 (NSW).
The Court held, granting leave and allowing the appeal (Free JA, Payne and Kirk JJA agreeing):
As to the cause of action on a judgment
1. Notwithstanding various observations about the obscurity of the cause of action and the relaxation of the rules regarding enforcement of judgments, the law has continued to recognise the availability of an action on a judgment. The respondent concedes that the cause of action persists and was available to the appellants when they commenced the 2018 Supreme Court Proceedings: [41]-[48].
Williams v Jones (1845) 13 M & W 628; 153 ER 262, Dennehy v Reasonable Endeavours Pty Ltd (2003) 130 FCR 494; [2003] FCAFC 158, Lowsley v Forbes [1998] 3 WLR 501, Kuwait Oil Tanker Company SAK v Al Bader [2008] All ER D 165; EWHC 2432 (Comm), considered.
As to abuse of process
2. It is not inherently an abuse of process for a plaintiff to bring an action on a judgment in circumstances where the plaintiff could instead have taken enforcement action directly in respect of the original judgment. An action on a judgment, while available as a legitimate cause of action, can involve or become an abuse of process. The fact that the action has been commenced within the applicable limitation period does not mean that it is incapable of constituting an abuse of process. However, there must be some feature of the proceedings that warrants the characterisation of abuse of process over and above the inherent characteristics of the cause of action itself: [49]-[61], [64].
Berkeley v Elderkin (1853) 1 E & B 805, Greville v Bird (1867) 6 SCR (NSW) 253, Duffy v De Rozzoli (1887) 8 LR (NSW) 153, Mason v Nicholls (1845) 14 M & W 118, Bennett v Royal Bank of Scotland [2004] EWCA Civ 988, ED & F Man (Sugar) v Haryanto (Court of Appeal Transcript 17 July 1996), Kuwait Oil Tanker Company SAK v Al Bader [2008] All ER D 165; EWHC 2432 (Comm), Habib Bank Ltd v Central Bank of Sudan [2014] EWHC 2288 (Comm), considered.
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32, applied.
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32, Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102, applied.
4. Commencing proceedings a matter of days before the expiry of the limitation period did not involve “avoiding” the limitation period in any relevant sense. In the absence of any finding that the appellants have acted in a way that is oppressive or unfair to the respondent, or otherwise involves the misuse of court processes, it was simply a matter of bringing an available action within the permitted time: [67]-[74].
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, Herron v McGregor (1986) 6 NSWLR 246; 28 A Crim R 79, GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442, applied.
As to circumventing time restrictions
Berkeley v Elderkin (1853) 1 E & B 805, Greville v Bird (1867) 6 SCR (NSW) 253, distinguished.
O’Mara Constructions Pty Ltd v Avery (2006) 151 FCR 196; [2006] FCAFC 55, applied.
PAYNE JA: I agree with Free JA.
KIRK JA: I agree with Free JA.
FREE JA: The common law recognises that when judgment is given requiring the payment of a specified sum, the creation of the judgment debt gives rise to a cause of action on the judgment. The appellants (who should have a grant of leave to bring their appeal) obtained judgments in their favour in March 2006 against the respondent (Mr Jourdan) requiring the payment of various sums. The money was not paid. The appellants did not bring enforcement action in respect of those judgments. Instead, the appellants commenced proceedings in the Supreme Court relying on their cause of action on the 2006 judgments. They did so within the period allowed for actions of this kind under s 17 of the Limitation Act 1969 (NSW) (Limitation Act). The practical effect was to extend the period within which the appellants might be able to achieve satisfaction of their entitlement to be paid the outstanding sums, in circumstances where the usual period for taking action to enforce the 2006 judgments would otherwise have passed and leave would have been required to apply for enforcement orders.
The question which arises on the application for leave to appeal is whether the institution or maintenance of the Supreme Court proceedings constituted an abuse of process. The primary judge held that it did and dismissed the proceedings accordingly. For the reasons developed below, I respectfully disagree with his Honour’s conclusion. The appellants had a legitimate cause of action which they properly invoked. There was nothing exceptional in the factual circumstances relating to the institution or maintenance of those proceedings that gave rise to an abuse of process. Mr Jourdan could not establish that he was prejudiced by the delay. The fact that the appellants had alternative rights to enforce the 2006 judgment debts, which they did not exercise, does not mean that it was an abuse of process to take the course of suing on the judgments, with all of the consequences that necessarily follow from invoking that cause of action. Contrary to the approach taken by the primary judge, the provisions of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) governing the enforcement of judgments are not frustrated or circumvented where a plaintiff chooses to bring an action on the judgment rather than seek enforcement of the original judgment. The fact that this prolongs the period within which a plaintiff might achieve ultimate satisfaction by recovering the money owed is a reflection of the inherent characteristics of the cause of action.
The first appellant, Glenda Shreeve, and the second appellant, Colin Shreeve, are married. Mr Shreeve is the sole director of both the third appellant (C & G Building Consultants) and the fourth appellant (Malachi Corporation). In the period before December 2003, the appellants were involved in property development projects with a number of parties, including a project with Mr Jourdan. In December 2003 the appellants terminated their involvement with the projects. The termination was the subject of a deed dated 19 December 2003 (December 2003 Deed).
Under the December 2003 Deed, Mr Jourdan agreed to pay $145,000 to the Shreeves by 30 June 2004. Mr Jourdan was the guarantor of a promise by another party to pay $115,000 to C & G Building Consultants by 30 April 2004. He was also the guarantor of a promise by another party to pay $50,000 to Malachi Corporation by 30 June 2004. None of the money was paid in accordance with those promises.
In July 2004 the Shreeves commenced proceedings in the District Court claiming against Mr Jourdan (and other parties who were guarantors under the December 2003 Deed) $145,000 plus interest under the District Court Act 1973 (NSW), for breach of the promise to pay under the December 2003 Deed. In August 2004 C & G Building Consultants commenced proceedings in the same court claiming $115,000 plus interest from Mr Jourdan, by way of enforcement of the guarantee he had given under the December 2003 Deed. In August 2005 an equivalent claim was brought by Malachi Corporation against Mr Jourdan for $50,000 plus interest.
On 20 March 2006 the three District Court proceedings were resolved in favour of the plaintiffs in each matter. Judgment was given for the respective plaintiffs for each of their claims (2006 District Court Judgments).
Mr Jourdan did not pay any of the judgment debts owed to the respective plaintiffs (being the present appellants). Both Mr Jourdan and the appellants experienced financial difficulties in 2006 and following. The appellants were concerned that Mr Jourdan was on the verge of bankruptcy and considered there to be a low prospect of recovery from him. In those circumstances the appellants were not willing to incur the costs of enforcement action against Mr Jourdan and no such action was taken.
There was no communication between the appellants and Mr Jourdan between 2006 and 2018. For at least some of this time Mr Jourdan resided overseas.
In 2017 the Shreeves became aware that Mr Jourdan was living in Sydney. They sought legal advice. Following that legal advice, proceedings were commenced by the filing of a statement of claim in the Supreme Court on 16 March 2018 (2018 Supreme Court Proceeding****s). This was four days short of 12 years after the 2006 District Court Judgments. That deadline was significant because 12 years is the limitation period for bringing an action on a judgment. It is also the prescribed period for seeking enforcement orders under the Civil Procedure Act in respect of those judgments. After 20 March 2018 it would become necessary to obtain leave to apply for such enforcement orders.
The link between the provision of legal advice and the commencement of the Supreme Court claim was addressed in the evidence of both Mr Shreeve and Mrs Shreeve in the proceedings before the primary judgment. The affidavit of Mr Shreeve included the following:
22. Thereafter we met with a solicitor, David Hooper (Mr Hooper), about the prospect of recovering the judgments. After speaking with Mr Hooper, I understand that there was a limitations period to enforce the judgments in the District Court Proceedings which was about to end.
As such, we decided to start new proceedings so that we could recover those judgment debts, and the Statement of Claim was filed in these proceedings on 16 March 2018.
Mrs Shreeve also gave evidence about the purpose of commencing the 2018 Supreme Court Proceedings. She said that her intention in filing the statement of claim was “to recover judgments for the judgment debts under the District Court Proceedings”.
The statement of claim in the 2018 Supreme Court Proceedings is brief and straightforward in its pleading of the claims relied upon by the appellants. In respect of the claim made by the Shreeves the appellants plead that the Shreeves commenced proceedings in the District Court for monies due to them by Mr Jourdan on a specialty debt, as a result of which they recovered judgment against Mr Jourdan in the sum of $167,446.71. It is further pleaded that the judgment remains wholly due and unsatisfied, and that in the premises Mr Jourdan is indebted to the Shreeves for $167,446.71. Interest is sought pursuant to s 101 of the Civil Procedure Act and the amount of interest said to be due is specifically pleaded.
An equivalent claim of C & G Building Consultants is pleaded, in the amount of $134,530.36 plus interest. In relation to Malachi Corporation, equivalent allegations are made in support of a claim for $58,491.78 plus interest.
On 17 July 2018 the appellants obtained default judgment against Mr Jourdan in the 2018 Supreme Court Proceedings. However, the default judgment was defective. It took the form of a single judgment for $764,442.04 in favour of all of the appellants. That was defective in circumstances where the pleaded claims concerned the appellants in separate capacities in relation to three distinct debts.
The appellants appear not to have appreciated that there was a problem with the default judgment until 2024. In the meantime, they did not take any action to enforce the default judgment. Nor did Mr Jourdan take any action between 2018 and 2024 to set aside the default judgment or pay the amounts owing to the appellants.
On 6 May 2024 the appellants caused a bankruptcy notice to be issued based on the default judgment for $764,442.04. After the bankruptcy notice was served on Mr Jourdan, solicitors acting for him wrote to the solicitors for the appellants pointing out the defect in the default judgment which I have described above. Following that correspondence, the appellants consented to orders on 10 July 2024 setting aside the default judgment on the basis of the defect identified by Mr Jourdan’s solicitors. The bankruptcy notice which had been issued in May 2024 was also withdrawn.
On 5 August 2024 Mr Jourdan filed a defence to the statement of claim. The only matter relied on as a defence to the claims is that the proceedings disclose no reasonable cause of action and are an abuse of process.
Consistently with the position pleaded in his defence, Mr Jourdan filed a notice of motion seeking that the whole of the statement of claim be struck out or, further or alternatively, that the proceedings be permanently stayed as an abuse of process. The interlocutory application was later expanded to include an application for summary dismissal under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). That was put forward as an alternative form of order if the Court concluded that the proceedings were an abuse of process: r 13.4(1)(c). The power to stay proceedings, including on the basis that they are an abuse of process, is conferred by s 67 of the Civil Procedure Act.
A critical feature of the argument on the notice of motion was that Mr Jourdan accepted that a judgment debt does create a new cause of action by which a plaintiff may bring an action on the judgment. It followed that, as the primary judge observed in his reasons for judgment, despite the terms of the notice of motion Mr Jourdan did not in fact contend that no reasonable cause of action was disclosed in the statement of claim. The sole basis for the interlocutory application was the contention that the proceedings were an abuse of process.
Mr Jourdan has maintained the same approach on appeal. Argument in this Court thus proceeded on the basis that the cause of action invoked by the appellants in the 2018 Supreme Court Proceedings is one that continues to be recognised by the law.
The essence of Mr Jourdan’s contention about abuse of process before the primary judge was a complaint about the long period of time that had passed since the 2006 District Court Judgments. Measured at the date of hearing of the notice of motion before the primary judge, almost 19 years had passed since those judgments were given. Mr Jourdan contended that the passage of time amounted to an “inordinate delay”, and that he had suffered prejudice as a result. He relied in this regard on the significant amounts of interest being claimed by the appellants in the 2018 Supreme Court Proceedings.
The primary judge essentially rejected Mr Jourdan’s complaint about prejudice to him. On the question of his exposure to liability to pay interest, his Honour noted that it would remain open to Mr Jourdan to argue at trial that the Court ought not order interest under s 101 of the Civil Procedure Act, including because of delay by the appellants in bringing the proceedings. Moreover, in circumstances where the purpose of interest is to compensate the appellants for being kept out of the judgment sums which Mr Jourdan was obliged to pay and has not paid, the primary judge did not accept that the claim for interest was a source of relevant prejudice.
As to the possibility that the passage of time might entail prejudice because of the delay in the trial of factual issues, the primary judge suggested that when a trial is conducted after a lengthy delay there is a presumed prejudice, but that in the case of Mr Jourdan “the presumption is weak”. That is because the appellants sue on debts which are capable of being proved by the records of the District Court. There is no room for Mr Jourdan to dispute either the existence of the debts or the fact that they have not been paid. To the extent that there might be factual issues about the reasonableness of the claim for interest having regard to events since 2006, that was not a matter that meant a fair trial was no longer possible.
[89] In any event, the modern temporal restriction on enforcing a judgment has an inbuilt flexibility which ought ensure that a judgment creditor will not be shut out if it is fair, reasonable or just that enforcement still be permitted in the circumstances of the particular case. To put it the other way, s 134 will only preclude enforcement where it is not fair, reasonable or just for enforcement to be permitted.
Section 138(1) of the Civil Procedure Act expressly provides that nothing in Part 8 of the Civil Procedure Act limits the manner in which a judgment or order of the court may be enforced apart from that Act.
The primary judge construed Part 8 of the Civil Procedure Act as manifesting a legislative intention that in circumstances where a party is seeking to rely on a judgment that is more than twelve years old the appropriate (and effectively exclusive) mechanism for enforcement is to seek leave under s 134(1) of the Civil Procedure Act so as to obtain enforcement of that judgment outside the prescribed period. Based on that understanding of the purpose and effect of Part 8 of the Civil Procedure Act, his Honour characterised a party proceeding instead on a cause of action on the judgment as “circumvent[ing] a liberal regime imposed by Parliament”.
This is evidently because the practical effect of proceeding on such a cause of action can be to facilitate, or potentially facilitate, enforcement of a new judgment debt, outside the prescribed period that applied to the original judgment debt and without going through the process of obtaining leave under s 134(1) of the Civil Procedure Act.
On the facts of the present case, the circumvention was not one that occurred immediately at the point of filing, but rather as a likely future consequence if the proceedings came to fruition. When the 2018 Supreme Court Proceedings were commenced the appellants were still within time to apply under s 134 of the Civil Procedure Act for enforcement of the 2006 District Court Judgments. Had the appellants chosen instead to enforce the 2006 District Court Judgments by application to a court under s 134 they would not have required leave. They could not be described at that point in time as circumventing the time limit in s 134 or the requirement for leave in respect of applications outside the prescribed period. Any circumvention could only occur if and when the appellants were put in the position of being able to enforce a new judgment debt after 20 March 2018. Although the primary judge did not express the issue in these terms, his Honour’s concern was evidently that the proceedings were instituted in a way that facilitated this later circumvention and/or that maintenance of the proceedings after 20 March 2018 became an abuse of process because of that consequence.
Proceedings of the kind brought by the applications on the cause of action on the judgment will, the primary judge found, “deprive Mr Jourdan, the Court and the public interest of the safeguards sought to be provided by the requirement for leave under s 134, which safeguards are intended by Parliament”. This outcome was said to be “manifestly unfair to Mr Jourdan because he will be deprived of the safeguards Parliament intends him to have. For the same reasons, the outcome may otherwise bring the administration of justice into disrepute”. In formulating the conclusions in these terms, his Honour was adopting the terminology of Lord Diplock in [1982] AC 529 at 536, where his Lordship referred to:
… the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.
… the grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available. This is why only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings. If a court refuses to exercise its jurisdiction to hear and decide cases in other than exceptional circumstances and as a last resort to protect the administration of justice through the operation of the adversarial system, that refusal itself will both work injustice and bring the administration of justice into disrepute.
In argument below Mr Jourdan also drew attention to the prospect of bankruptcy notices being issued under the Bankruptcy Act 1966 (Cth) (Bankruptcy Act). Pursuant to s 41(3)(c) of the Bankruptcy Act, there is a six year time limit on the issuing of a bankruptcy notice on the basis of a judgment debt. There is no power to extend that time. The time limit for issuing a bankruptcy notices in reliance on the 2006 District Court Judgments had therefore expired in March 2012. If the appellants were to obtain new judgments in the 2018 Supreme Court Proceedings, that would effectively create a fresh period of six years within which bankruptcy notices might be served on Mr Jourdan.
The primary judge acknowledged that it was arguable that an additional reason why the 2018 Supreme Court Proceedings were an abuse of process was that they exposed Mr Jourdan to a re-enlivened risk of being subject to a bankruptcy notice in circumstances where that risk had otherwise passed, in connection with the 2006 District Court Judgments, in March 2012. However, his Honour did not reach a concluded view in that regard. Mr Jourdan did not seek to argue on appeal, by way of notice of contention, that this was an alternative basis on which to sustain the orders of the primary judge. In the circumstances, it is unnecessary to give this argument any further consideration.
Where a plaintiff successfully sues on a debt, the original cause of action merges in the judgment and is extinguished: Blair v Curran (1939) 62 CLR 464 at 532; [1939] HCA 23; KR Handley, Spencer Bower and Handley*,* Res Judicata (6th ed, 2024, LexisNexis) at [1.04]. Court procedures for enforcement of the judgment may then be enlivened. But the law has also long recognised that a judgment requiring the payment of money also creates a cause of action on the judgment debt itself.
The cause of action is described by Pollock CB in William**s v Jones (1845) 13 M & W 628 (Williams v Jones) at 633; 153 ER 262 at 264-265 in the following terms:
It is plain that, on principle, an action of debt will lie upon the judgment of a competent court, whether of record or not of record; where a party has recovered a sum of money by the judgment of a court of competent jurisdiction, a debt is created, which may be enforced by an action of debt in the superior courts.
The true principle is, that where a court of competent jurisdiction adjudges a sum of money to be paid, an obligation to pay it is created thereby, and an action of debt may therefore be brought upon such judgment. This is the principle upon which actions on foreign judgments are supported
[8] Speaking generally, there are three categories of action on a judgment. One is an action to enforce a foreign judgment. For the purposes of a limitations statute it may be necessary to draw a distinction between an action on a foreign judgment commenced by writ and the enforcement of a foreign judgment after it has been registered under legislation such as the Foreign Judgments Act 1962 (Vic). It seems to be accepted that an action on a foreign judgment is not governed by s 5(4) but by s 5(1)(a). The reason for this is that such an action is treated as an action for a simple contract debt …
[9] The second category is a new action which is based on a judgment debt. Such an action is probably obsolete. But it once had a purpose. … [A]t common law a judgment could not be enforced after a year and one day. However, within that period a plaintiff could take proceedings by action in debt on the judgment: Chitty's Archibald's Practice 12th ed, vol 2, 1866, 1123; Shaw v Allen (1914) 30 TLR 631. If the plaintiff obtained a fresh judgment, time would start to run again. Presumably, the plaintiff could continuously renew a judgment in this fashion, at least until the court decided that he was acting in abuse of its processes. …
[10] The final category are proceedings which may or may not amount to "actions", namely proceedings by way of enforcement, such as by writs of execution.
[2] … Once it was the rule that when a year and a day had elapsed after judgment, without execution being levied, the judgment was deemed to have been satisfied. Following the enactment of the Statute of Westminster (13 Edw 1 c 45) a writ of scire facias (a warning) could be served requiring the defendant to show cause why execution should not issue against him notwithstanding the lapse of one year and one day: E Coke, The First Part of the Institutes of the Laws of England (A Commentary Upon Littleton) 291a; Underhill v Devereux (1669) 85 ER 715. This was changed by the Common Law Procedure Act 1852 (UK). Execution could then issue within six years from the recovery of the judgment without revival. After the expiration of six years, a judgment could be revived by leave or by writ of revival: Common Law Procedure Act, ss 128, 129, 130 and 131. In England, following the Judicature Acts, these sections were replaced by rules of court which were to the same effect. The rules were adopted by the superior courts in Australia, although in Victoria the writ of scire facias was preserved: Supreme Court Act 1958, s 163.
Following an equivalent evolution in New South Wales the position concerning enforcement of judgments is now governed by Part 8 of the Civil Procedure Act. As the primary judge observed in the present case, the law has moved a long way from the old common law presumption that a judgment was presumed to have been satisfied after a year and a day had passed. In addition to the default period for enforcement being much longer (twelve years as opposed to a year and a day) the conferral of discretion on the Court to grant leave to extend time gives additional flexibility to an already liberal regime.
There have been various observations about the obscurity of the cause of action, at least as it relates to actions on domestic judgments. In the passage extracted above Finkelstein J referred to such actions as now “probably obsolete”. The Final Report of the Law Reform Committee on Limitation of Actions (1977) (UK) described actions on a judgment as being “nowadays very rare indeed” (quoted in Lowsley v Forbes [1998] 3 WLR 501 at 509). In Kuwait Oil Tanker Company SAK v Al Bader [2008] All ER D 165; EWHC 2432 (Comm) at [8] Teare J described the claimants in that case as being entitled to seek a judgment against the defendant upon the judgment they had obtained in their first action against him, “however surprising that may seem”.
Notwithstanding such observations, the critical point remains that despite the relaxation of the rules regarding enforcement of judgment the law has continued to recognise the availability of an action on a judgment. Mr Jourdan did not refer to any authorities that were said to cast doubt on the ongoing existence of the cause of action. To the contrary, as I have emphasised above, the present matter has been conducted on appeal, as it was before the primary judge, on the premise that the cause of action persists and was thus available to the appellants when they commenced the 2018 Supreme Court Proceedings.
Nor has it been established by past decisions that it is inherently an abuse of process for a plaintiff to bring an action on a judgment in circumstances where the plaintiff could instead have taken enforcement action directly in respect of the original judgment. The position in England, in relation to actions on judgments of English superior courts, is described in Spencer Bower and Handley*,* Res Judicata in the following terms:
[2.47] The general rule is that an action will lie in an English superior court on a judgment of any such court, and the burden is on the defendant to establish abuse of process.
The position in Australia is no different. Reference is made in the footnote to this passage to Berkeley v Elderkin (1853) 1 E & B 805 (Berkeley v Elderkin), at 807 where Lord Campbell CJ said that “prima facie, an action lies on the judgment of any court of competent jurisdiction”. The learned authors proceed to say that a party who “unnecessarily sues on a judgment of an English superior court may be denied costs”, citing as an example Mason v Nicholls (1845) 14 M & W 118.
In Berkeley v Elderkin the prima facie position as described by Lord Campbell CJ did not prevail, such that an action was held not to lie on a judgment of the County Court. That is because the legislation which had established the County Court (County Courts Act 1846 (9 & 10 Vict c 95)) contained special provisions regulating the ways in which execution of a judgment of that court could be obtained, which were narrower than the modes of execution which would be available if judgment were issued by a superior court. Lord Campbell CJ concluded at 639 that it was:
… quite clear … that the intention of the Legislature was to confine the remedy on the judgments of courts constituted under that Act to the remedies specifically provided in the Act. The policy of the Act was to give an easy and cheap remedy for the recovery of small debts. The intention of the Legislature will be entirely defeated if the creditor is at liberty to [adopt the course of bringing an action on the judgment in a superior court].
The provisions in question conferred protections on a judgment debtor, including by protecting certain property from execution. Such protections would be lost if a fresh judgment issued in the superior court. Under s 100, the County Court was empowered, even after an ostensibly final judgment, to rescind or alter any order previously made and to make orders for the payment of debts by instalments or in any other manner as the judge may think reasonable and just. Lord Campbell CJ at 639 held that this situation enlivened the principle that “where new rights are given with specific remedies, the remedy is confined to those specifically given”. The implication was that the legislature did not intend that an action on the judgment could be maintained in a superior court where the nature and enforcement of the judgment was subject to such specific regulation. The issue was not analysed in terms of abuse of process, but rather as a limitation on the scope of the cause of action in its application to judgments of this particular kind.
Wightman J at 639, agreeing that an action did not lie, held that the prospect of the County Court being empowered to alter its judgment even while an action on that judgment was pending in the superior court was “so absurd that the legislature must be understood to prohibit the action”. Erle J likewise agreed and characterised the judgment in the County Court as being “placed on a different principle from an ordinary judgment”.
In Greville v Bird (1867) 6 SCR (NSW) 253 (Greville v Bird), it was held for similar reasons that an action did not lie in the Supreme Court of New South Wales on a District Court judgment. The reasoning of the Court turned on provisions of the District Court**s Act 1858 (NSW) which conferred specific protections on a judgment debtor. Under s 76, the District Court was empowered to order the payment of a judgment by instalments, while under s 80 certain things were protected from seizure. Stephen CJ held at 254 that the situation was relevantly indistinguishable from Berkeley v Elderkin. His Honour reasoned that it was “most strange, that this Court should give judgment and issue execution against all of the goods of the defendant, for the immediate payment of a debt, which the District Court may on the day previous have allowed the defendant to pay by instalments”. Stephen CJ explained that this conclusion was not in conflict with Williams v Jones, because in Greville v Bird the issue was governed by the intention of the legislature, as discerned from the District Court**s Act, that a suitor’s remedies ought be confined to those provided for in that statute. Faucett J at 255 reached the same conclusion, reasoning that the defendant ought not be liable to be sued in the Supreme Court on the judgment of the District Court because “if he were so liable he might, at the option of the plaintiff, be deprived of advantages conferred on him by statute”.
Suing on a judgment, at all events for the first time, cannot be said to defeat legislative policy. That is plain from the very language of s 24. … Here the second action was, of course, brought within that limitation period. There are two relevant ways of enforcing a judgment: by execution and by action. It is plain that the Court will not give judgment in an action on a judgment unless satisfied that the action does not constitute an abuse of process, having regard, amongst other things, to the availability of execution. It would, in my judgment, be for a defendant (or a person in the position of defendant) to show that a second action did constitute an abuse of process; the primary obligation is not that of a plaintiff to justify the bringing of further proceedings. Because, in the event of abuse of process, the Court may intervene and refrain from giving judgment in the second action, it cannot be said that a second action proceeds without judicial scrutiny, even if the second action is a matter of right and not discretion. Of course, it favoured the appellant in the present proceedings that it was a matter of discretion, even though, when he came to exercise it, he exercised it against the appellant.
The authorities to which our attention has been drawn show that the Courts have always held the bringing of the second action to be a matter of right, and in my judgment that is what it is …
The present limitation provisions here and in England concerning judgments apply, and s 17 of the Bill would apply, to an action on the judgment, but not to the processes of execution of a judgment: W & T Lamb & Sons v Rider ([1948] 2 KB 331). When exercising discretions concerning the execution of a judgment after a long period, however, a court has regard to the effect which the statutes of limitation would have if an action were brought on the judgment: Jay v Johnstone [1893] 1 KB 189.
In O’Mara Constructions Pty Ltd v Avery (2006) 151 FCR 196; [2006] FCAFC 55 at [16], the Full Court of the Federal Court held that the legislature can be taken to have intended that s 17 would have the effect described by the Law Reform Commission.
The observations of Leggatt LJ in ED & F Man (Sugar) v Haryanto about the maintenance of “judicial scrutiny” over the second action have a particular resonance in the present case. One of the concerns held by the primary judge was that the leave requirement in s 134 of the Civil Procedure Act establishes a form of judicial scrutiny over the bringing of actions for the enforcement of judgments outside the prescribed period. His Honour’s reasoning suggests that an action on the judgment is an abuse because it avoids judicial scrutiny. That overlooks the mechanism of judicial scrutiny described by Leggatt LJ, being the ability to intervene if and when the second action is an abuse of process. It would be circular reasoning to say that such intervention is necessarily warranted whenever a second action is commenced because the action is not subject to the different form of scrutiny that applies to enforcement actions under s 134 of the Civil Procedure Act.
On the facts in Bennett, the Court of Appeal was not satisfied that the plaintiff bank had engaged in any abuse of process. In doing so it rejected arguments, equivalent to those advanced by Mr Jourdan in the present case, that the bank had commenced the proceedings to obtain a second judgment for the sole purpose of “circumventing” the inconvenient fact that it was statute barred from enforcing the original judgment: [17]-[19].
Kuwait Oil Tanker Company SAK v Al Bader [2008] All ER D 165; EWHC 2432 (Comm) illustrates the kind of factual circumstances that could potentially give rise in a particular case to an abuse of process in connection with an action on a judgment, or at least the need for special conditions to avoid such an abuse arising. In that case the plaintiffs had taken steps to seek to enforce the original judgment, obtained in 1998, against such assets of the defendant as they had been able to identify. When a substantial amount remained outstanding, but the date of limitation for enforcement of the 1998 judgment was imminent, the plaintiffs commenced an action on the 1998 judgment. At that time enforcement action was ongoing, including in Switzerland. In order to address the overlap between the ongoing enforcement action and the new proceedings the plaintiffs undertook that enforcement of any judgment in the second action would be stayed until they had obtained permission from the Court to enforce it, which would give the opportunity the opportunity to review the matter and ascertain that enforcement was appropriate in the circumstances. The Court was satisfied that in the circumstances the second proceedings were not an abuse of process. The same conclusion was reached in [2014] EWHC 2288 (Comm) on the basis of an equivalent condition being imposed on enforcement of the second judgment.
Stripped of the loaded language sought to be attached by Mr Jourdan, the state of affairs facing the appellants as of 16 March 2018 was simply this:
as a matter of direct enforcement action the 2006 District Court Judgments were about to become stale. Unless they made an application for a writ for the levy of property, a garnishee order or a charging order in respect of the 2006 District Court Judgments by 20 March 2018, the appellants would only be able to pursue that option for enforcement if they obtained leave under s 134(1) of the Civil Procedure Act;
an alternative to direct enforcement action of that kind in respect of the earlier judgments was the commencement of a new action on the judgments, which was still within time but needed to be commenced by 20 March 2018;
the new action on the judgments, if successful, would have the practical effect of allowing more time to seek recovery of the outstanding money from Mr Jourdan, including if necessary by taking enforcement action in respect of new judgments if and when obtained on that action; and
the potential enforcement action that might be taken on the basis of new judgments would include enforcement action under the Civil Procedure Act (within twelve years of the future judgments) and issuing a bankruptcy notice within six years of judgment, pursuant to s 41(3)(c) of the Bankruptcy Act.
Given this context, there is nothing remarkable about the evidence given by the Shreeves to explain why they commenced the 2018 Supreme Court Proceedings. The Shreeves wanted to recover the outstanding judgment debts. They filed the 2018 Supreme Court Proceedings with a view to achieving that outcome. It may readily be inferred that they understood, having taken legal advice, that this was a legitimate option available to them as a means of recovering the money owed to them.
In light of the authorities considered above, it may be accepted that an action on a judgment, while available as a legitimate cause of action, can nevertheless involve or become an abuse of process. The fact that the action has been commenced within the applicable limitation period does not mean that it is incapable of constituting an abuse of process: GLJ at [37]. However, there must be some feature of the proceedings that warrants the characterisation of abuse of process over and above the inherent characteristics of the cause of action itself.
In the present case the primary judge made no finding that the purpose of the appellants commencing the 2018 Supreme Court Proceedings was in any sense improper, at least as that concept would ordinarily be understood in the context of abuse of process. There was no basis on the evidence to reach a conclusion that the appellants were actuated by anything other than a desire to recover the outstanding debts that Mr Jourdan owed them.
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.
Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff’s right of action at the end of that period.
His Honour made similar observations in Herron v McGregor (1986) 6 NSWLR 246 at 253; 28 A Crim R 79, quoted with approval in GLJ at [37].
It follows that there is a critical difference between commencing an action within the prescribed limitation period and seeking to commence an action outside that period. His Honour said, at 555:
If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, Dr Chang might have had little independent recollection of his conversation with the appellant and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.
Once these matters are appreciated, there is little substance in Mr Jourdan’s complaint that the appellants only commenced the 2018 Supreme Court Proceedings a matter of days before the expiry of the limitation period that applied. This is not, as Mr Jourdan would have it, a matter of “avoiding” the limitation period. It is simply a matter of bringing an available action within the permitted time.
Nor is there any finding that the appellants have acted in the context of the proceedings themselves in a way that is oppressive or unfair to Mr Jourdan, or otherwise involves the misuse of court processes. Despite the long passage of time between the 2006 District Court Judgments and today, there has in fact been very little engagement with the Court’s processes. The period between the giving of the District Court judgments in March 2006 and the commencement of proceedings in the Supreme Court in March 2018 did not involve the process of any court. At most, the complaint of Mr Jourdan is that the appellants could have invoked the processes of a court by bringing enforcement action but they did not.
After the commencement of the 2018 Supreme Court Proceedings the appellants moved efficiently to obtain default judgment against Mr Jourdan. Default judgment was obtained four months after the commencement of proceedings. No complaint is made about the time taken for this to occur, or the manner in which it came about. Again, there was a period of dormancy, from July 2018 and May 2024, when there was no engagement with the processes of the Supreme Court. There is no sense in which it can be said that during this period the appellants abused the processes of the Court.
The bottom line is that Mr Jourdan cannot point to any particular characteristics of the litigation that warrant a conclusion that the proceedings are an abuse of process. That is so whether one focuses on the actions and purpose of the appellants at the point of commencement of the proceedings, or the maintenance of the proceedings beyond 20 March 2018, or in 2024. The absence of any finding in his favour of prejudice is particularly telling. Properly scrutinised, his argument reduces to the proposition that to commence an action on a judgment is necessarily to “circumvent” the legislature’s intention that the only available mode of enforcement of the original judgment is by enforcement within the prescribed period under s 134 of the Civil Procedure Act or, after that time, with leave of the Court. That is the notion implicit in Mr Jourdan’s submission that the appellants brought the administration of justice into disrepute by filing an action which “avoided” the time limit in s 134. The primary judge in substance accepted that proposition. His Honour’s reasoning did not turn on any particular feature of the evidence or any particular step taken or not taken in the course of the 2018 Supreme Court Proceedings.
The error in this approach, with respect, is that it attributes to the legislature an intention that the regime in Part 8 of the for the enforcement of judgments is exclusive to the point that it would be undermined by allowing for an action on a judgment that can give rise to a fresh judgment, and a prospect of later enforcement on that judgment. No such intention can be discerned from the text, context or purpose of Part 8 of the The law has long recognised that an action on a judgment involves a response to a judgment which is distinct from direct enforcement or execution of that judgment. A necessary characteristic of the cause of action is that any subsequent judgment will bring with it the prospect of enforcement at a time which is later than the time at which enforcement of the original judgment might otherwise occur. That includes the prospect of enforcement of the subsequent judgment at a time when it may no longer be possible to enforce the original judgment giving rise to the cause of action.
(a) The notice of motion filed 31 July 2024 is dismissed. (b) The defendant is to pay the costs of the plaintiffs on the notice of motion.
**********
Shreeve
Jourdan [2025] NSWCA 236
(1939) 62 CLR 464
(1996) 186 CLR 541
(2003) 130 FCR 494
(2023) 280 CLR 442
(1986) 6 NSWLR 246
(2019) 100 NSWLR 218
(2006) 151 FCR 196
Leave to appeal was granted; the appeal was allowed; the primary judge's orders of 26 February 2025 were set aside; the respondent's notice of motion filed 31 July 2024 was dismissed; the respondent was ordered to pay the appellants' costs of the motion and appeal. The appellants were to file a notice of appeal in the form of the draft filed on 23 May 2025 within seven days: [79].
In support of the proposition that there is a presumption that prejudice is likely to be involved in the conduct of a trial after a lengthy delay, his Honour cited Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 (Brisbane South Regional Health Authority v Taylor) at 555 per McHugh J. It is necessary to say more about the judgment of McHugh J in that case when considering the resolution of the application for leave to appeal. For present purposes, it is sufficient to note that the judgment should not be treated as establishing or recognising a general presumption that a trial after a lengthy delay will entail prejudice. The point being made by McHugh J at 555 regarding “presumptive prejudice” was tied to his Honour’s observation that legislatures make a judgment when enacting limitation periods that the chance of an unfair trial occurring “after the limitation period has expired” is sufficiently great to require the termination of the plaintiff’s right of action at the end of that period.
The primary judge accepted a submission of Mr Jourdan that the explanation given by the Shreeves of their failure to take steps prior to March 2018 to enforce the 2006 District Court Judgments was “vague and unpersuasive”. His Honour described the evidence given by the Shreeves on that topic as “superficial”. His Honour likewise accepted Mr Jourdan’s submission that there was an absence of explanation for the inaction of the appellants after they obtained default judgment in the Supreme Court in July 2018. However, notwithstanding those findings, his Honour did not consider that the delay that had occurred was itself sufficient to warrant the proceedings being stayed or dismissed, in circumstances where neither actual prejudice nor any other form of manifest unfairness to Mr Jourdan was established.
The argument which found favour with the primary judge was that the bringing of the 2018 Supreme Court Proceedings “circumvented” time restrictions which would otherwise apply to the underlying claims. Mr Jourdan’s argument in this regard focused on s 17 of the Limitation Act and s 134 of the Civil Procedure Act.
The concept of “circumvention” is a loaded one and care needs to be taken to unpick the different aspects of the argument advanced by Mr Jourdan. In relation to s 17 of the Limitation Act, it was emphasised by Mr Jourdan that the 2018 Supreme Court Proceedings were commenced a few days before the expiry of the applicable limitation period of twelve years under s 17. At a factual level the contention was that the purpose of commencing those proceedings was to “avoid” the time restrictions that would otherwise apply to taking enforcement action in respect of the 2006 District Court Judgments. This was said to have been “admitted” in the evidence of the Shreeves.
The argument building from s 134 of the Civil Procedure Act must be understood in the broader context of Part 8 of that Act, of which s 134 is part. Section 103 of the Civil Procedure Act, which is also in Part 8, provides that, subject to Part 8, the procedure for enforcing a judgment or order of the court is to be as prescribed by rules of court. Various rules are so prescribed, for example in Part 40 of the Uniform Civil Procedure Rules 2005 (concerning measures for enforcing judgments and orders of the Supreme Court and District Court). Pursuant to s 106 a judgment debt (which is defined in s 3 to include any amount payable under a judgment) may be enforced by means of a writ for the levy of property, a garnishee order or, in the case of a judgment of the Supreme Court or the District Court, a charging order. A writ for the levy of property is a form of writ of execution, according to the definition in s 102.
The significance of s 134 of the Civil Procedure Act for Mr Jourdan’s argument is that it provides that an application by a judgment creditor for a writ of execution, a garnishee order, a charging order or an order for examination may not be made, except by leave of the court, if the prescribed period has elapsed since the judgment was given or registered pursuant to s 133. Except where the uniform rules prescribe a different period, the “prescribed period” is twelve years: s 134(2). Thus, as the heading to s 134 of the Civil Procedure Act indicates, after the expiry of the prescribed period judgments become “stale” when it comes to enforcement by means of writs of execution and similar measures.
This temporal restriction is not absolute, because under s 134(1) of the Civil Procedure Act a court may give leave for an application by a judgment creditor after the prescribed period has elapsed. The primary judge placed particular emphasis on this feature of the statutory scheme:
The situation that pertains where there is no legislative exclusion of this kind is illustrated by Duffy v De Rozzoli (1887) 8 LR (NSW) 153. It was held in that case that an action did lie in the District Court on a judgment given in the Supreme Court, as an aspect of the general conferral of jurisdiction on the District Court in respect of all pleas of personal actions where the amount was below a specified monetary limit. The argument to the contrary, seeking to invoke Berkeley v Elderkin, was rejected in circumstances where the defendant was unable to point to any particular protections that were bestowed on him in relation to the Supreme Court that could be said to be denied to him by reason of the action in the District Court. Darley CJ at 156 reasoned that, unlike in Greville v Bird, there was no basis to say that the plaintiff was confined to the particular statutory remedies that applied in the court that had given the original judgment. Sir G Innes J, agreeing, could not see the hardship in such a state of affairs: “If a man has incurred a judgment debt, I do not see why he should not pay it”: 156.
In Bennett v Royal Bank of Scotland [2004] EWCA Civ 988 (Bennett), Mummery LJ (with whom Baker LJ and Collins J agreed) referred at [4] to the following statement of Leggatt LJ (with whom Morritt and Brooke LJJ agreed) in ED & F Man (Sugar) v Haryanto (Court of Appeal Transcript 17 July 1996) as setting out the general principles regarding actions on an existing judgment:
To the extent that Mr Jourdan complained of “delay” in commencing the 2018 Supreme Court Proceedings, the appropriate focus is upon the effect of the delay, in particular on the trial process, and not the mere fact of the effluxion of time: GLJ at [43], citing the analysis of Bell P in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at 235 [77]. Here the difficulty for Mr Jourdan is that he cannot show that he will suffer any manifest unfairness because of the delay since 2006, including in terms of the ability to conduct a fair trial. As explained above the primary judge rejected Mr Jourdan’s complaints of prejudice.
It is also important to emphasise that the 2018 Supreme Court Proceedings were commenced within the time period allowed by s 17 of the Limitation Act. In Brisbane South Regional Authority v Taylor McHugh J considered the nature and purpose of statutory limitation periods. This was in the context of an application under s 31(2) of the Limitation of Actions Act 1974 (Qld) for an extension of time to bring a claim outside the limitation period. His Honour at 552 noted that the effect of delay on the quality of justice is “no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions”. After identifying three other broad rationales for the enactment of limitation periods, his Honour said, at 553:
As explained above, s 17 of the Limitation Act was enacted in a form which expressly recognised the existence of the cause of action and in circumstances where the legislature appreciated that there were separate rules governing the execution of judgments. There is plainly an overlap between those different ways of responding to a judgment, given that an action on a judgment is another means by which a creditor may achieve satisfaction of an entitlement to be paid. But it is not to be treated, either in form or substance, as a mode of enforcement of the original judgment itself, in the sense in which Part 8 of the Civil Procedure Act uses that concept*.* Once this context is appreciated, there is not a sound basis to conclude that the legislature’s objectives in enacting Part 8 are undermined by allowing judgment creditors to take the alternative course of bringing an action outside Part 8.
These conclusions are reinforced by s 138(1), which provides expressly that nothing in Part 8 “limits the manner in which a judgment or order of the court may be enforced apart from this Act”. Even if an action on a judgment is to be characterised for these purposes as a means of “enforcing” a judgment (which in my view is not an accurate characterisation), s 138(1) makes clear that the provisions of Part 8 were not intended to be exhaustive to the point of rendering it an abuse of process to bring such an action.
This is not a situation, of the kind that arose in Berkeley v Elderkin and Greville v Bird, where the 2006 District Court Judgments were subject to a special statutory regime affecting enforceability, the effect of which would be subverted by the prospect of fresh judgments to be obtained in the Supreme Court. Aside from the temporal limitations that have already been addressed, Mr Jourdan did not submit that, having regard to Part 8 of the Civil Procedure Act and any applicable rules of court, there was any relevant difference between enforceability of the 2006 District Court Judgments and the prospective future enforceability of judgments obtained in the 2018 Supreme Court Proceedings.
The orders that I consider appropriate are:
Leave to appeal is granted.
The appellants are to file within seven days a notice of appeal in the form filed as a draft notice of appeal on 23 May 2025.
Appeal allowed.
The orders of the primary judge of 26 February 2025 are set aside and in lieu thereof the following orders are made: