Hellier Capital Pty Limited v Richard Albarran [2009] NSWSC 403

Hellier Capital Pty Limited v Richard Albarran [2009] NSWSC 403

The Court refused to rescind the instalment order, finding on the unchallenged evidence that Mr Albarran could not pay the debt in full or at a higher rate, and that continuation of the instalment order was appropriate having regard to his financial circumstances, the detriment to his dependents and profession if bankrupt, and the fact that the order would repay the debt within a reasonable period.

Jurisdiction
Australia
Judgment Date
13 May 2009
Procedural Posture
Application to Rescind Instalment Order / Hearing De Novo Before Supreme Court Judge After Registrar's Order
Outcome
Plaintiff's notice of motion to rescind instalment order dismissed; costs ordered against plaintiff with set-off provision.
Legal Topics
['enforcement of Judgment Debts' 'instalment Orders' 'rescission of Instalment Orders' 'discretionary Factors in Enforcement Proceedings']
['civil Procedure' 'judgments and Orders'] ['enforcement of Judgment Debts' 'instalment Orders' 'rescission of Instalment Orders' 'discretionary Factors in Enforcement Proceedings']

Case Brief

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Procedural Posture

Application to Rescind Instalment Order / Hearing De Novo Before Supreme Court Judge After Registrar's Order

Legal Issues

  1. 1 ["Whether the instalment order made by the Registrar should be rescinded at the plaintiff's request" 'What matters are relevant to the exercise of discretion to rescind an instalment order']

Ratio Decidendi

The Court refused to rescind the instalment order, finding on the unchallenged evidence that Mr Albarran could not pay the debt in full or at a higher rate, and that continuation of the instalment order was appropriate having regard to his financial circumstances, the detriment to his dependents and profession if bankrupt, and the fact that the order would repay the debt within a reasonable period.

Court Disposition

Plaintiff's notice of motion to rescind instalment order dismissed; costs ordered against plaintiff with set-off provision.

Orders

  • ["The plaintiff's notice of motion filed on 29 April 2009 is dismissed." "The plaintiff is to pay the defendant's costs of the notice of motion." "The costs so payable are to be set off against costs payable by the defendant to the plaintiff pursuant to the Court's orders made on 5 March 2009."]