RED LEA CHICKENS PTY LTD v TANSEY [1995] NSWCA 387

RED LEA CHICKENS PTY LTD v TANSEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY ACJ, CLARKE and SHELLER JJA 17 July 1995, 17 July 1995 [1995] NSWCA 387

JUDGMENTS AND ORDERS — judgment debt payment by instalments — debt of $94,000 — interest accumulating at $829 a month — offer to pay instalments of $400 a month — challenge to order for such instalments — held: (by maj): Discretion miscarried- application rejected.

WORDS AND PHRASES — "instalments"

Cahill v Howe [1986] VR 630 not folld.

JUDGMENTS AND ORDERS - judgment debt - payment by instalments - order in District Court pursuant to Pt31A R2 and R3 District Court Rules for payment of debt of $94,771.88 by instalments of $400 per month - interest accumulating on debt at $829.25 per month under District Court Act 1973, s85 - unless instalments material increase no effective reduction of debt or interest would be accrued - creditor meanwhile prohibited by Rules from taking other proceedings against debtor - on summons for leave to appeal to the Court of Appeal - held: (1) (by the Court): Semble - the payment ordered of $400 per month were "instalments" within the meaning of Pt31A R2 and R3 DCR. Cahill and Anor v Howe [1986] VR 630 not followed; (2) (Kirby ACJ and Sheller JA; Clarke JA dissenting): The instalment order indicated a miscarriage of the discretion of the Judge making it and it should be set aside; (3) (by majority): Upon the exercise by the Court of Appeal of the discretion reposed in the primary Judge, the application for leave to pay by instalments of $400 per month refused.

PRACTICE AND PROCEDURE - District Court - judgment debt - payment by instalments - instalments cannot contribute effectively to reduction of debt and accumulating interest - held: (Kirby ACJ and Sheller JA, Clarke JA dissenting): Although semble the payments ordered were "instalments" within the meaning of Pt31A R2 and R3 DCR, the order indicated the application of an incorrect principle and should be set aside releasing both the creditor and the debtor to their rights and duties, including under the Bankruptcy Act.