BELL -v- SHEPHERD [2026] WADC 55

[2026] WADC 55 [2026] WADC 55 [JM] Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CHAMBERS LOCATION : PERTH CITATION : BELL -v- SHEPHERD [2026] WADC 55 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 6 MAY 2026 & 27 MAY 2026 DELIVERED : 24 JUNE 2026 FILE NO/S : CIVO 52 of 2016 BETWEEN : JOANNE BELL Judgment Creditor AND JENNIFER ANN SHEPHERD Judgment Debtor Catchwords: Practice - Application under Civil Judgments Enforcement Act 2004 (WA) for leave to execute - Turns on its facts Legislation: Civil Judgments Enforcement Act 2004 (WA), s 13 Sentencing Act 1995 (WA), s 119 Result: Application dismissed -- 1 of 11 -- [2026] WADC 55 [2026] WADC 55 [JM] Page 2 Representation: Counsel: Judgment Creditor : In person Judgment Debtor : No appearance on 6 May 2026 & in person on 27 May 2026 Solicitors: Judgment Creditor : Not applicable Judgment Debtor : Not applicable Case(s) referred to in decision(s): Duer v Frazer [2001] 1 All ER 249 Law v Gannaway as administrator of the estate of Nancy Cloonan Hall [No 2] [2011] WADC 195 -- 2 of 11 -- [2026] WADC 55 DEPUTY REGISTRAR HARMAN [2026] WADC 55 [JM] Page 3 DEPUTY REGISTRAR HARMAN: 1 On 27 January 2016 a compensation order in favour of the judgment creditor was issued for $134,324.20. According to the Sentencing Act 1995 (WA), a compensation order stands as a judgment. 2 Provision for enforcement of a judgment is made by the Civil Judgments Enforcement Act 2004 (WA), of which s 13 is in part as follows: (1) Leave of the court must be obtained before an order may be made under this Act to enforce a judgment - (a) if 6 years have elapsed since the judgment took effect; … … (2) On an application for leave under subsection (1), the court - (a) may give leave if it is satisfied that the person seeking to enforce the judgment is entitled to do so and that the person against whom the order is sought is liable to satisfy the judgment; and … (c) may do so on terms as to costs or otherwise. … 3 During the period of six years from the date of judgment, enforcement is unconstrained. After the period during which s 13 operates, it can no longer be enforced. 4 Accordingly, although a judgment establishes an enduring record, it has limited effect. The rationale for limitation may accord with the limitation on commencing an action and may resonate with mercy generated over a shorter period in the context of bankruptcy. In any event, the legislature has spoken. 5 By application made on 16 March 2026, the judgment creditor seeks leave to issue a property (seizure and sale) order against the interest of the judgment debtor in property at Ballajura. -- 3 of 11 -- [2026] WADC 55 DEPUTY REGISTRAR HARMAN [2026] WADC 55 [JM] Page 4 6 According to s 13(2)(a), the discretion to so order is established upon findings that the judgment creditor is entitled to enforce the judgment and that the judgment debtor is correspondingly obliged. 7 The judgment creditor has not provided evidence to found either conclusion. At best it is open to infer that she has not disposed of her interest in the judgment and that at least in part the judgment is unsatisfied. 8 Although it is open to the court to reflect upon consequences of the fact that a party is unrepresented, the result could not extend to assisting the party to discharge an evidentiary onus where there is reason to consider that evidence could have been provided. 9 Accordingly, the application will fail. 10 Despite the result, by what follows the court will consider the case presented by the judgment creditor. 11 Satisfaction of the conditions expressed by s 13(2)(a) would establish an unfettered discretion. The onus of persuasion that leave be granted rests on the judgment creditor. 12 The task to be undertaken in discharging the onus was outlined by Sweeney J in Law v Gannaway as administrator of the estate of Nancy Cloonan Hall [No 2] [2011] WADC 195. At [251] her Honour concluded: A [judgment creditor] seeking to enforce a judgment after the lapse of six years must demonstrate that it is demonstrably just that [the judgment creditor] be given leave to do so. 13 In reasons provided for decision in Duer v Frazer [2001] 1 All ER 249, the court put the same proposition. In that instance the task had been established by O 46 r 2 of the Rules of the Supreme Court 1965 (UK). The court contemplated that evidence would be provided of the reason for failure to execute during the initial six-year period and for any delay thereafter in applying to extend that period and of any prejudice to which the judgment debtor may have been subject due to delay. Apart from considering that a change in position of the judgment debtor may amount to prejudice, the court considered that the longer the period of delay the more likely that a court would find prejudice. -- 4 of 11 -- [2026] WADC 55 DEPUTY REGISTRAR HARMAN [2026] WADC 55 [JM] Page 5 14 The application presented the opportunity for the judgment creditor to account for inactivity during the period in which the judgment creditor had the right to enforce the judgment and for delay in bringing the application. The period of delay is a little over four years. 15 To appreciate the significance of both inactivity and delay, it is worth recording that although the amount awarded by judgment is commonly referred to as a judgment debt and the beneficial and adverse parties as judgment creditor and judgment debtor, there are significant differences between a debt so imposed and one voluntarily entered into. In the latter instance common law imposes an obligation on the debtor to locate and to pay the creditor whereas it is for a judgment creditor to locate the judgment debtor and to put the processes for enforcement into operation. 16 As for prejudice, other than in instances where there is doubt whether an obligation had been voluntarily undertaken, it would not be a relevant consideration in an action for recovery of a debt. In the context of enforcement of a judgment, as her Honour indicates, in the course of considering an exercise of discretion, the court would reflect upon the impact of inactivity and delay in discerning whether to provide leave would demonstrably be just. 17 Duer may be taken to stand for the proposition that although by non-payment, the judgment debtor has been advantaged, that advantage would not necessarily displace consideration that inactivity and/or delay has generated prejudice sufficient to defeat an application for leave. 18 The application was accompanied by an affidavit by which the judgment creditor deposes as follows: 1. The original [property (seizure and sale) order] 227/2016 was redundant as there was no equity in the property, and nothing else of value to be seized. 2. At present similar properties in Ballajura are selling in excess of $850 000. 3. The amount owing in 2018 (Means Inquiry) was $378 525 … 4. I presume there will now be significant equity in the property to re-issue a [property (seizure and sale) order]. -- 5 of 11 -- [2026] WADC 55 DEPUTY REGISTRAR HARMAN [2026] WADC 55 [JM] Page 6 19 Upon the return of the application, because the judgment creditor handed up some documents and it was immediately apparent that in excess of 10 years had elapsed since the date of judgment, after some observations were made, the judgment creditor was invited to file a further affidavit and the hearing was adjourned. 20 Prior to resumption of the hearing, the judgment creditor had filed a further affidavit by which she introduced documents and provided the following depositions: There will be enough equity in the property at … Ballajura because of recent escalation in house prices to re-issue a [property (seizure and sale) order]. (attachment D). I am now providing evidence that there was no equity in the property in 2016/17 when previous [property (seizure and sale) orders] were issued. (attachment B & C) The property in question is owned by the debtor. (Attachment A) 21 The first attachment to the affidavit meets the description recorded in the index to the affidavit as certificate of title for the Ballajura property. 22 The certificate is dated 5 May 2026. It relates to the property the subject of the application and records that the registered proprietors are the judgment debtor and Paul Gregory Shepherd as joint tenants; that Pepper Finance Corporation Ltd is the mortgagee; and that there is a property (seizure and sale) order registered over the interest of the judgment debtor. The order was registered on 15 June 2016. 23 In accordance with s 102, the order operated for 12 months and could have been extended for a period of no more than 12 months upon application. It is evident that the order was not extended. 24 According to its content, the next attachment appears to be a communication from the judgment debtor addressed to Andrew Neagu. Reference will later be made to Mr Neagu. The communication is undated; refers to the compensation order; and is specified in the index as 'Letter from the debtor dated 27 January 2016'. 25 The date specified in the index is incorrect; it is the date of the order. -- 6 of 11 -- [2026] WADC 55 DEPUTY REGISTRAR HARMAN [2026] WADC 55 [JM] Page 7 26 The content of the document relates to a period of two years immediately following the order. Accordingly, it would have little, if any utility for the purposes of the application. 27 The next attachment is a statement of account issued by peppermoney addressed to the judgment debtor for the period from 1 January 2017 to 19 June 2017. It specifies as borrowers Paul Gregory Shepherd and the judgment debtor. It was issued on 11 July 2017 and is so specified in the index. 28 It is open to consider that the statement of account of peppermoney came into the possession of the judgment creditor as a result of a means inquiry to which the judgment debtor had been required to bring documents that related to the outstanding debt to peppermoney owed by Paul Gregory Shepherd and the judgment debtor. Reference will later be made to two such inquiries. 29 The amount of the debt and a measure of similarity in the names peppermoney and that of the mortgagee, suggest that the debt is likely to account for the mortgage. 30 The next attachment is a document issued by OpenAgent dated 5 May 2026 addressed to the judgment creditor that relates to the Ballajura property. It is so specified in the index. 31 Although it projects an assessment of value of the property, there is nothing to indicate that the assessment had been made by a person. By the affidavit the judgment creditor does not depose to any feature of its content. In the circumstances, the content is appropriately ignored. 32 The final attachment is a page of text that is evidently part of a longer document. There is no feature by which it would be readily identified. By a process of elimination, it is the document described in the index as 'advice from lawyer 25 May 2017 Irwin Legal'. 33 The advice relates to the prospect of the judgment creditor receiving funds from the sale of unspecified property by the sheriff. 34 It is open to consider that it was generated in the context established by registration of the property (seizure and sale) order on the title of the Ballajura property in 2016. -- 7 of 11 -- [2026] WADC 55 DEPUTY REGISTRAR HARMAN [2026] WADC 55 [JM] Page 8 35 There is nothing other than the index to identify its author. Its content is not introduced into evidence by the deponent. In the circumstances, its content is appropriately ignored. 36 The only resources available to the court other than the affidavits of the judgment creditor are the documents located on the file maintained by the court and what the judgment creditor conveyed both prior to and at the conclusion of the second date of hearing. 37 The latter speak for the intention of the judgment creditor. Prior to the hearing she sent a letter by which she informed the court that she did not intend to pursue the application. At the conclusion of the hearing, it was apparent that the judgment creditor was undecided whether to continue with the application. 38 The material that is on the file does not extend to the proceeding in which the compensation order was generated. It is open to consider that the order speaks for the fact that an indictment had been issued; the guilt of the judgment debtor had been established; the judgment creditor had been a victim of crime; the extent of her loss had been sufficiently clear to justify making the order; and that by the order the judgment creditor had been saved the trouble and expense of taking civil action to the extent of the benefit it conferred. 39 The file reveals that on each of 11 April 2016 and 25 July 2017 the judgment creditor obtained property (seizure and sale) orders that specified the interest of the judgment debtor in the Ballajura property. 40 The copy of the certificate of title attached to the second affidavit of the judgment creditor records a single property (seizure and sale) order having been registered on 15 June 2016. It is open to consider that the order made on 25 July 2017 was not presented for registration. 41 A means inquiry was conducted on 18 January 2018 at which the judgment creditor was represented by Mr Neagu. Prior to 2018 the judgment creditor had been represented by a different practitioner. The means inquiry was relisted on 28 February 2018, and the judgment debtor was ordered to produce specified documents on that date. In accordance with a memorandum of consent filed on 28 February 2018 the inquiry was vacated. It was never relisted. 42 On 13 February 2019 a summons was issued for a further means inquiry which was listed on 19 May 2019. By that date the judgment creditor was no longer represented. The judgment debtor was -- 8 of 11 -- [2026] WADC 55 DEPUTY REGISTRAR HARMAN [2026] WADC 55 [JM] Page 9 examined by the judgment creditor. At the conclusion of the examination, the judgment debtor was discharged from the obligation generated by the summons. 43 The only content of the file generated since 19 May 2019 that relates to enforcement are a series of emails that suggest that in November 2019 the judgment creditor had been engaged in the process of issuing a bankruptcy notice founded upon the compensation order. The judgment creditor had then been provided with a sealed copy of the order. 44 Because time and its passing will be relevant in assessing whether leave be granted, it is appropriate to record that judgments bear interest at the rate of 6% per annum. 45 On the basis that no part of the judgment has been paid, that rate establishes an entitlement to recover additional amounts of $8,059.45 per annum. 46 The case presented by the application exposes some imponderables. The first is the relationship between factors generated by any found delay on the part of the judgment creditor and interest on the judgment; the second, the lack of evidence that relates to the intention expressed by the judgment creditor in seeking a sealed copy of the compensation order in November 2019; and the third, the result that the mortgagee would impose upon sale the interest of the judgment debtor in the property. 47 Although for the purposes of s 13, the period under consideration for the purposes of the application is from 26 January 2016 to 16 March 2026, the part of that period since the means inquiry held on 19 May 2019 amounts to seven years. In that part of the period, on the case presented by the judgment creditor, there is nothing to indicate that she has taken any action. 48 There is no reason to consider that at any time the judgment creditor had been unable to locate the judgment debtor. 49 There is nothing to indicate that any event precipitated the application. 50 The court takes notice of a steady increase in the market price of real estate located in the metropolitan region of Perth and that it has done so at a rate over the longer-term average for at least the last five years. -- 9 of 11 -- [2026] WADC 55 DEPUTY REGISTRAR HARMAN [2026] WADC 55 [JM] Page 10 51 If the motivation for the judgment creditor to apply has been the cumulative effect of the steady increase in property values in Ballajura, it is open to consider that over the same period, the cumulative effect of failure to execute and delay in seeking leave would establish the prospect of prejudice for the judgment debtor. 52 Two prospects emerge for consideration. The first is that at some point or points during that part of the period, the judgment debtor has adjusted to the prospect that the judgment would not be enforced. Whilst for some part of the period that prospect may have been tenuous, it may have been given greater substance after the expiration of the period of six years from the date of the order. The second is that if the judgment was now enforced the judgment debtor would confront the consequences at a later point in her life than would have been the case had enforcement been undertaken earlier. 53 According to the compensation order, the judgment debtor was born on 14 August 1954. 54 When examined in May 2019 the judgment debtor stated that she was unemployed and had been since September when she gave up work for health reasons. She stated that she had had a mental breakdown. At the hearing she produced a medical certificate. 55 On the figures presented by the judgment creditor by her affidavits, it is open to consider that the process of enforcement in which she seeks to engage would have been productive of the benefit provided by the order together with interest some time ago. That period would be at least one year, perhaps two. Had the application been made even one year ago it would have provided that much additional time for the judgment creditor to adjust. 56 Regardless whether the judgment debtor has resumed paid employment, the significance of execution being undertaken at a later point in her life is that at least the opportunity for her to engage in paid employment would have decreased. She is now at an age where each passing year reduces her prospects of accommodating significant change. 57 Whilst the same could be said of the judgment creditor, it is evident that over a significant period she has chosen not to act. 58 Those prospects are a significant factor that weigh against a grant of leave. -- 10 of 11 -- [2026] WADC 55 DEPUTY REGISTRAR HARMAN [2026] WADC 55 [JM] Page 11 59 Despite the circumstances that preceded the order, an assessment of the context presented by the application generates no impetus for a grant of leave to execute in the manner proposed. The judgment creditor has not discharged the onus of persuasion that it would be just to so enforce the judgment. 60 It is not inappropriate to add observations in response to the communication of the judgment creditor dated 20 May 2026 by which she had indicated that she had decided not to pursue the application; although nonetheless when the matter was called, she did so. 61 By that communication the judgment creditor stated: My lawyer advised that the only way to recover any of the debt was through a Means Inquiry, which took place in 2019. However, nothing resulted from it, despite there being a surplus of about $2,500 per month. Unfortunately, no order was made requiring [the judgment debtor] to enter into a payment plan, nor was any suggestion made that [the judgment debtor] reduce her excessive spending. I have been continually disappointed with the judicial system in this matter. 62 Reading the transcript of the hearing does not assist with understanding the contention of excessive spending. 63 The observation that relates to the balance of the content of the communication cited, is that the transcript reveals that on multiple occasions, in response to submissions of the judgment creditor, it was pointed out that according to the evidence, the husband of the judgment debtor was the sole source of income for the household. On the same occasions it was also pointed out that the husband of the judgment debtor was not subject to the compensation order. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. MB Associate to Registrar 24 JUNE 2026 -- 11 of 11 --