Citicorp Australia Ltd v Pollard [1992] QSC 333

State Reporting Bureau. TRANSCRIPT OF PROCEEDINGS. {Copyright in this transcript is vested in the Crown.· Copies thereof must not be made or sold \Vithout the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF . CITICORP AUSTRALIA LIMITED and . ·JAMES RICHARD POLLARD BRISBANE .. DATE 09/09/92 JUDGMENT ~·· . 1 -- 1 of 4 -- 090992 HIS HONOUR: The- plaintiff, Citicorp Australia Limited, which I will call Cit.icorp, applies for an order that the Registrar be directed to issue a certificate of judgment under. section 20 of the Service and Execution of Process Act in terms which reflect an assignment to Credit Corp Australia Pty Ltd, which I will call Credit Corp, of the debt owed by James Richard Pollard by Citicorp. Citicorp obtained judgment against Pollard on 17 May 1985 in the sum of $71,296.49 together with $3,450.53 for interest and costs on a· solicitor and client .basis. On.5 December 1985 c{~ico~p Fihance'Pty Ltd, on behalf:of Citicorp, assigned the Mr. Pollard had become unknown and wheri he was located interest in enforcing the debt was renewed. Section 20 of the Service and Execution of Process Act relevantly provides that any person in whose favour a judgment is gi~en or ~ade may obtain from the Registrar a certificate of such judgment in the form and containing the particulars set forth in the Third Schedule of the Act or as near thereto as circumstances permit. The certificate is required to be granted under the hand and seal of the Court. Pursuant to section 21, upon production of such certificate to the proper officer of a Court of like jurisdiction in another State, that officer is to register it by entering its particulars in the Australian Register of Judgments. The entry becomes a record of that Court from the date of registration and has the same force and effect in all respects as a judgment of that Court. JUDGMENT 2 10 20 30 40 50 60 -- 2 of 4 -- 0 90 992 -_ I was informed that Citicorp and Credit Carp are desirous of the certificate of judgment "properly reflecting the legal situation of the assignment of the debt by Citicorp to Credit Carp". It is said that "the order sought seeks to properly state the legal position" with respect to the right to enforce the debt. It was submitted to me that it was open to me to make the direction sought under .Order 32 rule 13 which gives the Court or a Judge power at ·any time on such terms as the Court or Judge may think_ just to amend any defect or error in any proceedings. I· was referred to .Pearlman Veneers (SA) Pt:~ in support of this proposition. enforcement was sought attempted to avoid it by taking refuge in the proposition that no such person by the name of the defendant existed. An amendment to reflect the true situation was allowed. That, it seems to me, was really a case of misnomer and is not relevant directly for present purposes. Reliance was also placed upon an inherent power of the Court to make the direction sought. It was submitted that the amendment gives ·effect'· ,t.o ./t.:h~- ttfuE:(·\t~~al-·-' . ... si tuati~:m,- ... · , that .is, .: J:hsL~ j ~P<jffi·en_t · .:eroces=s ... will in fact be conducted by Credit Carp as assignee of Citicorp. It was submitted that that being the case it did not involve altering the substance of the. judgment. There remained a judgment in the amount stated against the defendant. 10 30 40 . 50 It must be remembered that the assignment in question occurred 60JUDGMENT 3 -- 3 of 4 -- 090992 some months after the judgment had been entered and that what is in the Court records accurately reflects the judgment. pronounced. There was not at that time and never has been a judgment pronounced in favour of Credit Carp against Mr Pollard. The assignment has been effected solely by a (m~tual.~ arrangement between the parties and without any intervention on the part of the Court. It is not a case where what is sought is a correction of some error or defect or inaccuracy in connection with the proceedings as conducted. What is sought involves giving a certificat~ tha~.is at variance with what happened in the proceedings to remedy what ' ';:,,), '\n: '' \ is perceived to be' a difficulty the co~mercial 10 20 . e:t~ g"~.~~'~:~~n~:;~ ~;S ~ i g;n ~;e 1 :lfF; ;::Ji'>1i'':'\'h~)/•"sc;\~;:};";i~;~i.; that arose and why it cannot be otherwise rem~died was not made clear in evidence. In my opinion, it is not appropriate to direct the Registrar to 30 issue a certificate which does not reflect the records of the Court. I was informed that orders similar to that sought had been sought in reliance on the inherent power in the .Supreme Court 40 of New South Wales and that those applications were successful. However, counsel was unable to give me any information about the circumstances of these applications and I prefer to adhere to the view that it is not appropriate, on the material before me at present, to give the direction 50 sought in the circumstances of this case. Accordingly, the application is dismissed. 60 ·JUDGMENT 4 -- 4 of 4 --