Linke v TT Builders Pty Ltd (No 3) [2015] FCA 1054

Linke v TT Builders Pty Ltd (No 3) [2015] FCA 1054

The Court may exercise its discretion to issue a summons to a third party where there is sufficient basis to conclude the person may be able to assist with the investigation into the judgment debtor’s means of satisfying the judgment debt; in this case, familial relationship, involvement in property transfer, and shareholding supported such a conclusion. The scope of examination is limited to investigating the debtor’s means, and not broader inquiries such as the debtor’s location.

Jurisdiction
Australia
Judgment Date
10 September 2015
Procedural Posture
Enforcement of Costs Order / Application for Investigation and Issuance of Summonses
Outcome
Orders made for investigation and issuance of summonses as detailed; application regarding the Department of Immigration and Border Protection not pressed; costs order made against Mr Armando Tessitore as to the hearing (with exceptions).
Legal Topics
["investigation of Judgment Debtor's Means" 'examination of Third Parties' 'issuance of Summons for Examination' 'production of Documents' 'discretion in Enforcement Proceedings' 'interpretation of Statutory Enforcement Provisions']
['civil Procedure' 'enforcement of Judgments' 'costs'] ["investigation of Judgment Debtor's Means" 'examination of Third Parties' 'issuance of Summons for Examination' 'production of Documents' 'discretion in Enforcement Proceedings' 'interpretation of Statutory Enforcement Provisions']

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Procedural Posture

Enforcement of Costs Order / Application for Investigation and Issuance of Summonses

Legal Issues

  1. 1 ['Whether the Court should investigate the means of the first and second respondents to satisfy a judgment debt under the Enforcement of Judgments Act 1991 (SA) s 4 and Federal Court Rules 2011 rr 41.01 and 41.10' "Whether a summons should be issued to a third party (Mr Armando Tessitore) to appear for examination and to produce documents relevant to the judgment debtors' means" "Scope of the Court's power and discretion to issue such summonses and limits of permissible examination under s 4(1)"]

Ratio Decidendi

The Court may exercise its discretion to issue a summons to a third party where there is sufficient basis to conclude the person may be able to assist with the investigation into the judgment debtor’s means of satisfying the judgment debt; in this case, familial relationship, involvement in property transfer, and shareholding supported such a conclusion. The scope of examination is limited to investigating the debtor’s means, and not broader inquiries such as the debtor’s location.

Court Disposition

Orders made for investigation and issuance of summonses as detailed; application regarding the Department of Immigration and Border Protection not pressed; costs order made against Mr Armando Tessitore as to the hearing (with exceptions).

Orders

  • ['The Court will investigate the means of the First and Second Respondents to satisfy the judgment arising from the Certificate of Taxation issued on 22 May 2015.' 'A summons be issued to Mr Armando William Tessitore requiring him to appear for examination as to interests/assets and to produce specified documents,...