CRCI P/L v Menzies [2009] QDC 315

[2009] QDC 315 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 7 of 2009 CRCI PTY LTD Plaintiff and IAN DAVID MENZIES and COLLEEN ANNE MENZIES Defendants MARYBOROUGH ..DATE 25/09/2009 ORDER Catchwords: Enforcement of purported judgment of the Supreme Court of New South Wales stayed where sealed copy of the judgment filed showed (presumably erroneously) a money judgment for the defendants against the plaintiff, which had proceeded as "judgment creditor" and obtained an enforcement warrant 1 -- 1 of 4 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: I order that the enforcement warrant of the 20th of January 2009 be stayed until the later of (a) 31st October, 2009 and (b) the filing in the registry of a certificate of judgment establishing that CRCI Pty Ltd has a judgment in the Supreme Court of New South Wales against Ian David Menzies and Colleen Anne Menzies or earlier order and grant liberty to apply. ... What is before the Court is an application by Ian David Menzies and Colleen Anne Menzies seeking a stay of an enforcement warrant which is dated 20 January 2009 for "three months so as the seized home of the defendants can be sold in an orderly manner, so as to satisfy the plaintiff's owner, Ron Blyth who is Ian Menzies first cousin." The bailiff was present before Judge Tutt on 27th of July 2009 when the application was returnable, having been filed on the 6th of July 2009; he is present today. Ms Kerle represents CRCI Pty Ltd which presents itself as the enforcement creditor, but on the last day a principal, Mr Ponti, appeared. His Honour adjourned the matter to the end of September. The bailiff advises that Mr Ponti had undertaken to get him to hold action until the end of September. The matter has come on today because it's the last day on which there'll be a Judge in Maryborough until the 30th of November. -- 2 of 4 -- 3 ORDER 1 10 20 30 40 50 60 Ms Kerle, in the absence of the Menzies, asked the Court to dismiss the application so that her client could proceed. Ordinarily that might be the correct outcome. However my perusal of the file indicates that this whole enforcement proceeding is very much under a cloud. It is said to be based on a judgment of the Supreme Court of New South Wales. This Court opened its file with a "judgment/order" bearing the seal of that Court and under the heading case number 20394 of 2005 describing the company as plaintiff and the Menzies as defendants, the document shows a judgment given on the 12th of December 2007 entered on the 13th of December 2007 followed by: "TERMS OF JUDGMENT OR ORDER 1. Verdict and judgement for the Defendants. 2. The Plaintiff’s to pay the Defendants’ costs in the agreed sum of eight thousand dollars ($80,000.00). 3. The Plaintiff is to have six months time to pay from the date hereof. 4. No interest is to accrue during the period referred to in Order 3 above." That material is inconsistent with the basis on which the parties in this Maryborough proceeding have been operating. The Menzies appear to accept that there's a judgment against them. Due no doubt to some error or a series of errors the document sealed by the Supreme Court of New South Wales and dated 15 January 2009 which is document number 1 on the -- 3 of 4 -- 4 ORDER 1 10 20 30 40 50 60 Maryborough Court file is totally inadequate to support any kind of enforcement proceeding against the Menzies who are solemnly certified by the Supreme Court of New South Wales to have been the victors in the litigation there and entitled to a judgment, the amount of which is uncertain. I would have thought basic to enforcement proceedings of the present kind in aid of a judgment from another jurisdiction that a reliable certificate for purposes of section 15 of the (Commonwealth) Foreign Judgments Act 1991 or rule 947N or equivalent be provided, that for interstate judgments there be a sealed copy of a judgment as contemplated in s105 of the (Commonwealth) Service and Execution of Process Act 1992 appropriate to lead to the enforcement warrant requested. That is emphatically not the case here. I am inclined to think that errors have occurred which can probably be overcome by a correct certificate being obtained by the company and filed. But enforcement, in my view, ought not to proceed until that has happened. The warrant issued immediately upon the filing of the sealed "judgment/order" from the Supreme Court of New South Wales and it would appear without adequate scrutiny of the document in the registry here. It remains to be seen what will happen next. The warrant will be good for a year. It might be that in the next sitting of the Court here the company makes application for a renewal. ----- -- 4 of 4 --