Kelbush Pty Ltd v Clark

Court of Appeal. Available debt and debt appropriation order under Civil Judgments Enforcement Act 2004 WA. Cause of action by judgment debtor (hirer of car) against third person (car rental company, and client) for indemnity (insurance provision) under car rental agreement. Judgment creditor (RAC WA through its insured driver) obtained default judgment against hirer of car and then obtained a debt appropriation order against third person. Although a debt was not due and owing the judgment creditor obtained a property seizure and sale order against the client and for almost a year threatened enforcement until the sum claimed was paid. The debt appropriation order was objected to on the only available ground – that the appropriated debt does not and will not exist. Debt appropriation order held to be valid. Appeal dismissed. Also found the judgment creditor was not entitled to the enforcement order. Client was not successful as to the disposition of the appeal. Client was successful in that the decision affirmed respondent was not entitled to the enforcement order. A debt was not due and owing. Appellant had not challenged the validity of the enforcement order under s105 of the Act