Peter Sheldon v Steven John Scerri [2011] NSWSC 253

Peter Sheldon v Steven John Scerri [2011] NSWSC 253

The instalment order was appropriate because the defendants had paid substantial sums, all instalments were current, the remaining debt would be paid in about 20 months, further borrowing had been refused, business funds were needed to allow Mr Scerri to continue earning income, and immediate full payment would effectively require sale of the family home. In those circumstances the Court re-exercised the discretion anew and refused to rescind the instalment order.

Jurisdiction
Australia
Judgment Date
06 April 2011
Procedural Posture
Notice of Motion to Rescind Instalment Order for Payment of Judgment Debt by Instalments / Hearing De Novo of Application Concerning Instalment Order Made by Registrar
Outcome
Plaintiff's notice of motion dismissed; plaintiff ordered to pay defendants' costs as agreed or assessed.
Legal Topics
['instalment Orders' 'rescission or Variation of Orders' 'costs Assessment' 'judgment Debt Enforcement']
['civil Procedure' 'costs' 'judgment Enforcement'] ['instalment Orders' 'rescission or Variation of Orders' 'costs Assessment' 'judgment Debt Enforcement']

Case Brief

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Procedural Posture

Notice of Motion to Rescind Instalment Order for Payment of Judgment Debt by Instalments / Hearing De Novo of Application Concerning Instalment Order Made by Registrar

Legal Issues

  1. 1 ['Whether the instalment order made on 23 November 2010 allowing the defendants to pay the judgment debt by instalments should be rescinded.' 'Whether the defendants should be required to pay the judgment debt and the costs assessment review amount in full within 45 days.' 'Whether the defendants had sufficient means or undisclosed assets such that the discretion should be exercised against allowing payment by instalments.']

Ratio Decidendi

The instalment order was appropriate because the defendants had paid substantial sums, all instalments were current, the remaining debt would be paid in about 20 months, further borrowing had been refused, business funds were needed to allow Mr Scerri to continue earning income, and immediate full payment would effectively require sale of the family home. In those circumstances the Court re-exercised the discretion anew and refused to rescind the instalment order.

Court Disposition

Plaintiff's notice of motion dismissed; plaintiff ordered to pay defendants' costs as agreed or assessed.

Orders

  • ["The plaintiff's notice of motion filed 30 November 2010 is dismissed." "The plaintiff is to pay the defendants' costs as agreed or assessed."]