Estate agents’ appeal against county court judge’s order for monthly payments in respect of a judgment debt for commission due to the appellants for sale of a house–Amount of commission due under agreement £360.13–Judge increased registrar’s order of £5 per month to £10–Appellants asked for £25 per month and submitted that the judge had failed to take into account the capital sum received by the vendors–Held that on the facts disclosed to the judge the burden of showing that he had exercised his discretion wrongly had not been discharged–Appeal dismissed
In this case
Andrews & Partners Ltd, estate agents, appealed against an order of Judge
Lerman in the Epsom County Court, varying an order by the registrar for payment
of a judgment debt for commission by instalments. Judgment had been given for
the appellants in March 1979 for the full amount of their claim, namely,
£360.13 on a price of £15,700 realised by the sale of the respondents’ house.
The registrar’s order for payment of the debt at the rate of £5 per month was
varied by the judge by increasing the instalments to £10.
J M A De
Burgos (instructed by John Chapman & Co) appeared on behalf of the
appellants; David Tattam appeared in person on behalf of himself and his wife,
Ann Tattam, the respondents.
Giving the
first judgment at the invitation of STEPHENSON LJ, DAME ELIZABETH LANE said:
This is a plaintiffs’ appeal against an order of His Honour Judge Lerman made
in the Epsom County Court on June 7 1979. The order under appeal was for
payment of a judgment debt and costs by amended instalments.
The history of
this case, as set out in the particulars of claim, is this. In about March 1978
the defendants instructed the plaintiffs, who are estate agents, to sell a
house. The terms of the agency were set out in a letter which the plaintiffs
wrote to the defendants and which clearly were accepted by them. In about the
same month of March 1978 the plaintiffs introduced prospective purchasers of
the defendants’ house who became the actual purchasers at a price of £15,700,
completion taking place about September 1978. Under the terms of the agreement
between the parties the plaintiffs thereupon became entitled to be paid the sum
of £360.13. The defendants did not pay and the plaintiffs commenced an action
in the county court on January 20 1979. On February 13 1979 the defendants
filed a defence which, in effect, complained of the way in which the plaintiffs
had looked after their interests and saying that the plaintiffs had rushed
through the sale to satisfy a more important client, and so forth. The defence
was ineffectual and on March 12 1979 judgment was given for the plaintiffs for
the full amount claimed, to be paid within 14 days and costs within three days
of their taxation.
On April 23
1979 the defendants applied for a stay of execution and asked for an instalment
order to be made, offering to pay £35 immediately and £5 a month off the
judgment debt and giving some particulars of their financial situation. On that
date the registrar of the county court made an order for £25 to be paid within
seven days and thereafter £5 a month.
The plaintiffs
appealed to the judge from the registrar’s order and on June 7 His Honour Judge
Lerman increased the monthly payments to £10. At that time the debt was
£330.13, plus £20 being the costs of the appeal to the judge which he assessed
then and there and ordered the defendants to pay. Today this court has been
told that the debt stands at £230 plus costs which will amount to no more than
£50 It is against the order of the judge that the plaintiffs now appeal.
Judge Lerman’s
brief notes of the evidence are before us and show, so far as I am able to
understand the position, that the male defendant has net earnings of £360 a
month, that he has living expenses, comprising food for himself, his wife and
his six-year-old daughter, of £110 per month; he has other debts which total
some £281 a month and he has also to pay for his rates, his electricity, and
the expenses of getting to work by car and, I suppose, all the other expenses,
although he does not refer to them, which do accrue in a family of this size.
But the plaintiffs say that he made a profit on the sale of his house which,
when the arithmetic was investigated at some length here, turned out to be
£870. He bought a new house and he paid £18,000 for it, of which he obtained
£15,000 on mortgage, and by the time he had paid his solicitors in respect of
the purchase of the new house and paid the retention charge made by the
building society, he cannot have had, on my understanding of the figures, more
than £200 in his pocket as net proceeds of the whole transaction.
The grounds of
appeal, though I think that this was not pursued here, include the complaint
that the learned judge had failed to take into account the capital sum which
fell to the defendants. I am not sure if I understand the meaning of ‘and out
of which the defendants were adjudged due to pay £360.13 by way of contractual
debt.’ (I suppose that means they had a
capital sum left even if they had paid the plaintiffs.) I have already indicated that I do not think
they would have had more than £200, which no doubt went on the expenses of
moving.
It is
suggested on behalf of the plaintiffs that these defendants could pay £25 rather
than £10 per month. Mr De Burgos, appearing for the plaintiffs, was in some
difficulty, because if he suggested a very moderate increase in the amount he
was out of court, and if he suggested too large an amount this court was not in
the least likely to smile upon that. It is a matter of discretion for the
county court as to what instalments should be made. This is dealt with in
section 99 of the County Courts Act 1959. Speaking for myself, in my experience
of county courts, appeals against instalment orders were virtually unknown,
although I do not say that there were none. County courts realised a long time
ago that it is better in everyone’s interests, including those of creditors, to
order an amount which can be paid, rather than an amount
ago as 1946 in the case of Sophian v A J Clifford & Son
[1947] 1 KB 212, which was cited to us by Mr De Burgos, really in favour of the
defendants who are unrepresented before us. A creditor may always go back to
the county court and ask for more if he considers that there has been a change
of circumstances, or if he believes that there has been an increase in the
debtor’s means, and, indeed, such is expressly provided for by the rules. It is,
of course, sometimes difficult for judgment creditors to know if debtors have
acquired higher means, but that difficulty in this case has been overcome by
the fact that the defendant, appearing for himself and his co-defendant, his
wife, has given an undertaking that he will inform the plaintiffs if his
financial position improves. I suppose one must take that to mean, improves
sufficiently substantially to make it worth the creditor’s while to go back to
court if he does not make a satisfactory offer. But the undertaking as it
stands is that he will notify them if his financial situation improves.
While I do not
question the right of these plaintiffs to appeal, it seems to me that the
burden of showing that the learned judge exercised his discretion wrongly,
which is always a heavy one, is particularly heavy in this case. Speaking for
myself, I consider that the amount of £10 a month ordered was a fair one and a
proper one in all the circumstances, and was certainly not so low that this
court ought to interfere with it, and I would dismiss this appeal.
Agreeing,
BRIGHTMAN LJ said: I am afraid that the appellants’ counsel was faced with an
impossible task. On the figures it seems to me out of the question for us to
interfere with the learned judge’s discretion, and I agree that the appeal
should be dismissed.
Also agreeing,
STEPHENSON LJ said: I have nothing to add except two things; first, my
appreciation of the careful and attractive way that Mr De Burgos presented a
hopeless appeal against respondents in person; and secondly, to repeat that it
seems to me that this case is one more illustration of the need for
reconsidering the impossibility of allowing a payment of interest on judgment
debts in the county court.
The appeal
was dismissed with costs, assessed at £2.
