Hargraves Secured Investments Ltd v Sharpe

[2016] NSWSC 26

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Hargraves Secured Investments Ltd v Sharpe [2016] NSWSC 26
Hearing dates:	On the papers
Date of orders:	03 February 2016
Decision date:	03 February 2016
Jurisdiction:	Common Law
Before:	Garling J
Decision:	Refuse leave to list the Notice of Motion filed by Mr Sharpe on 20 January 2016 for hearing
Catchwords:	PRACTICE AND PROCEDURE – leave to apply sought – leave refused
Category:	Procedural and other rulings
Parties:	Hargraves Secured Investments (P) David George Sharpe (D)
Representation:	Solicitors: Hargraves Solicitors (P) Stephen Wawn, Solicitor (D)
File Number(s):	2012/41764
Publication restriction:	Not Applicable

________________________________________________________________

Judgment

1. This litigation has been on foot since 2012.

2. On 5 June 2012, the parties entered into a Deed of Settlement of all of the disputes between them. An Appendix to that Deed was a Consent Judgment dated 6 June 2012, which gave the plaintiff a money judgment and judgment for possession of various properties. At that time, the amount owing by the defendant to the plaintiff was almost $1.87M.

3. Since that time, there have been numerous applications to the Court relating to that Deed, and to other disputes between the parties.

4. On 21 August 2013, Adams J made the following order:

“I order that, with the exception of an application for leave to appeal to the Court of Appeal in relation to the judgment of Harrison J of 13 May 2013, that no application, in relation to the proceedings against him, by the defendant is to be listed for hearing without first the leave of a judge of the Court being granted and such leave being determined on the papers.”

5. On 6 January 2016, Mr Sharpe lodged by way of a Notice of Motion in the proceedings, an application to pay by instalments. He noted that the Motion was to be dealt with in the absence of the parties. Mr Sharpe sought to pay the existing judgment debt, the totality of which was not specified with precision, by instalments of $25,000 each fortnight commencing on 21 January 2016.

6. He annexed to his application a financial statement which revealed that he was in receipt of an average weekly income of $900, from which income he estimated his basic living expenses to amount to $420 per week. In addition to setting out the estimated value of his home ($700,000), Mr Sharpe disclosed that he had $1,050 in cash in a bank, and that he owned a motor vehicle, household contents and other personal property which were in total valued at $22,000. He acknowledged the existence of the current debt to the plaintiff as one liability, and indicated that he had other liabilities against him totalling $450,000.

7. On 6 January 2016, a Deputy Registrar of the Court refused the application made by Mr Sharpe to pay by instalments on the basis that “… it is unlikely that the defendant will be able to pay a proposed fortnightly instalment of $25,000 on a weekly income of $900”.

8. On 20 January 2016, Mr Sharpe lodged a Notice of Motion objecting to the order of the Deputy Registrar of 6 January 2016, refusing his instalment application.

9. The administrative processes of the Court resulted in that Motion being listed at 9am on 5 February 2016 for an initial hearing before the Common Law Registrar.

10. In light of the order of Adams J made on 21 August 2013, before the matter can proceed to a hearing on that day, leave of a judge of the Court is required. The matter has been referred to me for consideration on the papers, in my capacity as the Common Law Duty Judge, to determine whether a grant of leave ought be made in accordance with the order of Adams J.

11. The Notice of Motion objecting to the order refusing the instalment application continues the proposal to pay the judgment debt by an amount of $25,000 per fortnight. There is no material filed in support of the Notice of Motion, nor was there any material put before the Deputy Registrar, which indicates that Mr Sharpe has any financial capacity at all to make payments of $25,000 per fortnight.

12. The decision of the Deputy Registrar of 6 January 2016, was plainly correct.

13. The Notice of Motion seeking to challenge that decision has no prospect of success.

14. Accordingly, I refuse to grant leave to list the Notice of Motion filed by Mr Sharpe on 20 January 2016 for hearing.

**********

Amendments

04 February 2016 - Typographical error [12]