RED LEA CHICKENS PTY LTD v TANSEY [1995] NSWCA 387

RED LEA CHICKENS PTY LTD v TANSEY [1995] NSWCA 387

By majority, the order permitting payment of the judgment debt by instalments of $400 per month was set aside as a miscarriage of discretion because the payments were insufficient to reduce the debt or interest, thereby preventing the creditor from pursuing other remedies and binding the parties indefinitely. The application for leave to pay by instalments was refused.

Parties
Claimant/appellant: Red Lea Chickens Pty Ltd; Defendant: Luconi Pty Ltd; Opponent/respondent: Michael John Tansey
Jurisdiction
Australia
Judgment Date
17 July 1995
Procedural Posture
Appeal / Judgment of the Court of Appeal Following Grant of Leave to Appeal From a District Court Order
Outcome
Appeal allowed by majority; instalment order set aside; application for leave to pay by $400 per month refused
Legal Topics
Payment of Judgment Debt by Instalments, Exercise of Discretion in Instalment Orders, Interest on Judgment Debts
Civil Procedure Judgments and Orders Payment of Judgment Debt by Instalments Exercise of Discretion in Instalment Orders Interest on Judgment Debts

Case Brief

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Parties

Red Lea Chickens Pty Ltd

Claimant/appellant

Luconi Pty Ltd

Defendant

Michael John Tansey

Opponent/respondent

Procedural Posture

Appeal / Judgment of the Court of Appeal Following Grant of Leave to Appeal From a District Court Order

Legal Issues

  1. 1 Whether the order for payment of the judgment debt by instalments of $400 per month was a proper exercise of discretion
  2. 2 Whether such payments constitute 'instalments' within the meaning of Pt31A R2 and R3 District Court Rules
  3. 3 Whether the discretion of the trial judge miscarried in making the order

Ratio Decidendi

By majority, the order permitting payment of the judgment debt by instalments of $400 per month was set aside as a miscarriage of discretion because the payments were insufficient to reduce the debt or interest, thereby preventing the creditor from pursuing other remedies and binding the parties indefinitely. The application for leave to pay by instalments was refused.

Court Disposition

Appeal allowed by majority; instalment order set aside; application for leave to pay by $400 per month refused

Orders

  • Extend time for the claimant to bring the summons for leave to appeal
  • Grant leave to appeal