Civil Procedurr - MEMO TO Supervisor PDF

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Civil Procedurr - MEMO TO Supervisor...

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CIVIL PROCEDURR - MEMO TO SUPERVISOR To: From: Date: Re:

Lawrence Law, Supervisor Me 11 November 2019 Red Brick Constructions Pty Ltd v Chilled Out Pty Ltd

Hi Lawrence, I have researched the various enforcement methods available that would be relevant to the assets and income of Chilled Out Pty Ltd. I have confined my research only to those enforcement methods that would be appropriate in respect of the assets and income of Chilled Out Pty Ltd provided in the list and have set out my findings below. I would first recommend to the client that we apply for a Means Inquiry. The Means Inquiry is a prerequisite for a number of the enforcement procedures available to our client, but it will also allow us to obtain further details about the financial circumstances of the judgment debtor, such as income, but may also provide us with information about assets belonging to the judgment debtor that we were not aware of. In order to apply for a Means Inquiry, we will need to complete the Civil Judgments Enforcement Act 2004 (“CJEA”) Form 6 and lodge it with the Court. The Court will then issue a Form 11 Means Inquiry Summons setting out a date for the judgment debtor to attend Court to provide information about their financial circumstances. The Form 11 will need to be served on the judgment debtor at least 7 clear days before the date set for the Means Inquiry. 396 Roland Road and 22 Height Street As the funds received from the sale of the two properties is currently being held by a third party, being the settlement agent, the most appropriate enforcement method for these two assets would be a debt appropriation order. The debt appropriation order would compel the settlement agents to pay the money owing under the judgement sum to our client, as judgement creditor, rather than to the judgement debtor. A Means Inquiry is not required to be held prior to applying for a debt appropriation order, however, it would be useful to have a Means Inquiry first as it will provide information about any liabilities the judgment debtor may have, including any such liabilities over the asset we are seeking to obtain a debt appropriation order over. In order to obtain a debt appropriation order, a CJEA Form 6 should be completed and lodged with the Court. An affidavit should also be completed in support of the application for a debt appropriation order. Once the Court have made the debt appropriation order, a copy of the Order will need to be served on the third party by ordinary service. Business bank account Given that these funds are held by a third party, being the bank, it would likely be most appropriate to obtain a debt appropriation order to compel the bank to pay the money in the account to the judgement creditor. The same process as set out for the two properties should be followed. 2016 Porsche 911 As this motor vehicle is not the property of the judgment debtor and is in fact owned by SKY Leasing and simply leased to Mr Pearce, it does not appear that any enforcement method would be appropriate in this case. In any event, there are other assets available which are owned by the judgement debtor which could potentially satisfy the judgment sum in full.

2016 Porsche Cayenne The vehicle is registered in the name of the director of the defendant company. There does not appear to be any evidence that there are any loans or other money owing on the vehicle that could affect the viability of having the vehicle sold. As such, a Property (Seizure and Sale) Order (“PSSO”) would appear to be most appropriate for this motor vehicle. A PSSO would provide authority to the Sheriff to seize the judgment debtor’s property, such as the motor vehicle, and sell it on behalf of the judgment creditor to satisfy the judgment debt. A Means Inquiry does not need to be held in order to obtain a PSSO, however, as already stated it would be useful as it may provide information about any liabilities registered over or owing in relation to the motor vehicle. In order to apply for a PSSO, a CJEA Form 6 should be completed. A Form 25 Order will then be issued by the Court to the Sheriff/Bailiff providing them with the authority to seize and sell any assets of the judgment debtor on behalf of the judgment creditor to satisfy the judgment debt. Personal bank account Again, a debt appropriation order would likely be most appropriate if we were to choose to pursue these funds to satisfy the judgment debt. The funds are currently held by a third party, being the bank, and the debt appropriation order would compel the bank to pay the money in the account to the judgment creditor rather than to the judgment debtor. The same process as set out previously for a debt appropriation order should be followed. Recommendation to Client After a consideration of the relevant enforcement methods available to our client and the risks and disadvantages that come with each, it is my view that the most appropriate method of enforcement available to our client would be a debt appropriation order in respect of the net proceeds of sale of the Fremantle and Subiaco properties. This is for a number of reasons, including: 1. The funds from the sale of the assets are readily available - The funds are currently held by a third party, being the settlement agents, rather than in the hands of the judgment debtor. 2. Less risk compared to other enforcement methods available - Other methods, such as the PSSO, bring with it the risk that the Sheriff/Bailiff may be unable to seize any goods of saleable value, or if they are able to seize goods with a value they may be unable to sell them at an amount high enough to satisfy the judgment debt in full. 3. Funds available would satisfy the judgment debt - There are enough funds to satisfy the judgment debt in full without the need to pursue other methods of enforcement against other assets of the judgment debtor, which would save the client time and money involved in pursuing other assets and/or methods of enforcement.

Thank you,...