Case: Adams v Lambert [2006] HCA 10 (Full High Court 4 April 2006)
Outcome: cited
Star Kitchens then filed the bankruptcy notice on 24 August 2005 and personally caused the same to be served (as stated above) upon Mr Pacer on 29 August 2005. The bankruptcy notice served on Mr Pacer referred to an amount outstanding of $30,733.51; that amount comprised the abovementioned sum of $27,354.32 recorded on the certificate of Local Court judgment as well as an amount claimed in respect of interest accrued since the date of judgment. The calculation of that interest was explained in note 2 as follows: 'Judgment was entered against Frank Pacer in the Downing Centre Local Court on 8 April 2004 for the sum of $27,354.32, plus interest to Judgment date... Interest on the Judgment debt is being claimed for the period from 9 April 2004 to 22 August 2005...' It is apparent from the Magistrate's reasons for judgment that the amount awarded on 8 April 2004 by way of quantum meruit was actually $19,820 plus costs, rather than $27,354.32. The costs order made against Mr Pacer in the Local Court proceeding initiated by Star Kitchens had not been assessed as at the time of filing the notice, and therefore the costs the subject of that order must have formed no part of the $27,354.32 judgment debt. In that regard it seems likely that the figure of $27,354.32 recorded in the certificate of judgment, which was of course issued on 16 August 2005, incorporated the interest outstanding on the $19,820 judgment, calculated from 12 May 2000 to 16 August 2005, as ordered by the Magistrate. In those circumstances the bankruptcy notice would seem to have overstated the amount outstanding, insofar as it purported to levy interest upon the difference between $27,354.32 and $19,820 during the period from 8 April 2004 to 16 August 2005. That is not however fatal to the notice: see s 41(5) of the Act and Adams v Lambert [2006] HCA 10 (Full High Court 4 April 2006). 9 Before addressing the submissions made by the parties in respect of the application to set aside the judgment, it is appropriate to describe in more detail Mr Pacer's subsequent applications in the Local Court. On 12 August 2005, following upon the Supreme Court's dismissal of his appeal from the Local Court judgment, Mr Pacer filed an amended statement of liquidated claim in proceedings no. 12463 of 2004, which he had commenced in the Downing Centre Local Court against Star Kitchens on 12 November 2004 as I have earlier recorded. Also on 12 August 2005, Mr Pacer filed a notice of motion for a stay of the original Local Court judgment until the determination of those new proceedings. On 18 August 2005, Star Kitchens filed a notice of motion seeking to have Mr Pacer's statement of claim struck out, pursuant either to Part 13 rule 4 of the Uniform Civil Procedure Rules , as being frivolous or vexatious or an abuse of the process of the Court, or pursuant to Part 14 rule 28 as an abuse of process of the Court. Star Kitchen's notice of motion of 18 August 2005 sought in the alternative an order for security for costs and a stay until such security was provided. 10 On 10 October 2005 a Magistrate dismissed Star Kitchen's application for summary dismissal. The Magistrate ordered that a stay of the original Local Court judgment should be granted, subject to Mr Pacer paying the abovementioned amount of $27,354.32 into Court as well as an amount necessary to cover the assessed costs of the original Local Court proceedings which had been successfully prosecuted by Star Kitchens, and also the costs of the proceedings in the Supreme Court. The costs of the original Local Court proceedings were assessed and recorded as $17,490.89 in a certificate of judgment dated 14 October 2005. On the same day a certificate of judgment also issued out of the Local Court which recorded Star Kitchen's assessed costs of the Supreme Court proceedings as $9,168.36.