Amos v Wiltshire [2017] QDC 209

District Court of Queensland|2017-07-12|Before: Martin J

The applicant is to pay to the respondent the sum of $200,288.90, being the claim, costs and interest to today, together with the interests on the sum of $133,390.28, pursuant to section 59(3) of the Civil Proceedings Act 2011, such interest to be calculated from 28 August 2015 until the date of payment.

[3] I pause to note there that the applicant in that proceeding is the applicant before me today, and the respondent, of course, is the respondent before me today.

Those are reasons enough to regard the respondent's 24 August 2015 application as being insufficiently meritorious to grant the adjournment which the respondent sought. But there was also the lapse of a further and substantial period of time after the determination until that application was filed. That further delay was contributed to by the respondent's appeal against Martin J's determination, which he subsequently abandoned, until, at the eleventh hour, after exploring and abandoning yet a different theory, the respondent brought the 24 August 2015 application. That history militated against the exercise of the discretion to grant an adjournment.

I concluded that it was wholly inappropriate to allow the respondent further time for yet another opportunity to challenge the Court's final orders of 22 October 2010. I would have reached the same conclusion f I had thought that the new evidence suggested a reasonable case that the respondent might have obtained a favourable determination had the new evidence been available to him. The appalling history of the litigation in this Court was such that the only appropriate response was to bring that litigation to an end.

Once the adjournment was refused, an order dismissing the 2 August 2012 application was inevitable in the light of Martin J's findings. That was not in issue. It inevitably followed that the 24 August 2015 application should also be dismissed.

Each of the other orders set out in [18] of these reasons was uncontentious in the event that the adjournment was refused, save for the order for indemnity costs (Order 3). I considered that such an order was appropriate and should be made in the exceptional circumstances of this matter. This was not merely a case in which one party's evidence was preferred to another party's evidence. The respondent's various attempts to set aside the Court's orders of October 2010 lacked any reasonable basis, and they were premised on evidence which, on the unchallenged findings by Martin J, lacked credibility and was tailored to suit the respondent's claims.

[5] The reference to the respondent there is, of course, a reference to the applicant in the proceeding before me. As Mr O'Shea submitted, in essence, at least on the respondent's case, he has been denied the benefit of those orders since October 2010.

[6] Turning to the relief sought by the applicant, on 12 February 2016, an enforcement warrant was taken out, consequential upon the orders made by the Court of Appeal in August 2015. Three issues have been raised in favour of setting the warrant aside. The first two are interrelated and are articulated in the applicant's written submissions, prepared by senior and junior counsel, in paragraphs 12 to 14, in the following terms:

Three grounds are relied upon. Firstly, the defendant has miscalculated daily interest of $28 per day, rather than $27.40 per day. The defendant concedes this error. This has led to a failure to comply with the mandatory requirements of the UCPR rule 817(1)(b)(v), which provides that a person applying for an enforcement warrant must (not may) file a statement setting out any interest due at the date the statement was sworn. It is a necessary inference that the statement that was filed in the present case did not comply with this mandatory requirement; likewise, in respect of the requirement in (vii), that it state the daily amount of any interest accruing. Secondly, quite apart from the requirements of the rule, as execution is penal in operation, it must follow that the judgment (must say) on its face why it does not.

[7] And the third matter identified is that a copy of the enforcement warrant had not been filed in the District Court in accordance with rule 817(3). That complaint was dealt with by me by allowing the warrant to be filed with my leave during the course of today's proceedings. The fact that it has been filed some months after the warrant has been taken out is of no relevant consequence in the circumstances of this proceeding, in my view.

[8] As to the first of the two issues raised, it is true that the warrant does not state why there is a discrepancy in respect of the interest. But that is entirely unsurprising, as, when the warrant was taken out, that discrepancy or error was not known about. As to the second matter, the discrepancy is in the agreed amount of 60 cents per day in interest. As senior counsel for the applicant quite correctly pointed out, a warrant such as this is penal in nature. But, in my view, here the extremely minor nature of the error is a significant factor to be taken into account, and, in this context, I note that, insofar as the issue of the penal character of the warrant is concerned, the error that does exist is one that favours the applicant. But that is largely inconsequential, given the amount involved.

[9] During the course of Mr Harrison's submissions on behalf of the applicant, reference was made to two Victorian cases. The first was O'Neil v Hart [1904] ArgusLawRp 97; [1905] VLR 259, where, at page 266, Chief Justice Madden said:

Execution is in the nature of a penal operation. A writ of execution warrants the seizure of the property of a person, and it must be shown to that person on the face of that writ that there is proper authority for what is being done. I think, therefore, that, according to the cases which have been cited before me and according to what one understands of the principles regulating execution - that this writ is bad because it did not follow the judgment and did not, on its face, show why it did not.

[10] That statement may well have been correct, having regard to the circumstances of that case at the time, in my respectful opinion. However, here, as I have pointed out, the departure from the judgment is extremely minor. Put bluntly, the error, in my view, is so minor, that it would be wrong, to categorise it as amounting to a failure to follow the judgment. It is a matter that must, of course, be rectified, but that is a separate question. Finally, in this context, the failure is the result of a genuine error, not the consequence of deliberate behaviour or negligence. This last matter is, of course, in no way determinative, but it is a matter that I consider ought to be put on the record.

[11] The second case to which I was referred was Pippett v Wald and Liu, a decision of the Victorian Supreme Court, [2016] VSC 402. I was referred to paragraphs 24 and 25 of that judgment, where it was relevantly said:

A warrant of execution must accord with the judgment or order upon which it is based. If it does not accord with the judgment or order it may be set aside or amended as irregular. The power to set aside a warrant arises either under rule 2.01 of the Rules or pursuant to the inherent jurisdiction of the Court.

The warrant in this case does not accord with the order. The order is not an order that Ms Liu pay the costs taxed, yet the warrant states that it is and is a process for the enforcement of payment. That is a sufficient basis to set aside the warrant as being irregular. It is no answer to this proposition that the Associate Judge intended to provide for payment of the sum of $800.00 in respect of the costs of the day on January 2016, as there is no order for payment of this sum either.

[12] In respect of that passage, I would make just three observations. The first is this Court has no such inherent jurisdiction to rectify irregularities. That said, though, there, the departure from the order was substantial, and that can be contrasted to the facts in this case. The third matter is that it is clear that, at least insofar as the rules of the Victorian Court applied, an irregularity did not necessarily inevitably lead to a warrant having to be set aside.

[13] On behalf of the respondent, it was submitted that the warrant could be rectified, pursuant to rule 371 and/or rule 375. Rule 371 relevantly provides:

(1) A failure to comply with these rules is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding, a nullity.

(2) Subject to rules 372 and 373, if there has been a failure to comply with these rules, the Court may -

and thereafter a number of steps are set out. Rules 372 and 373 have no relevance to this proceeding.

[14] Reliance was also placed on rule 375(1), which, under the heading Power to Amend relevantly provides:

At any stage of a proceeding, the Court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or any other document in a proceeding in the way and on the conditions the Court considers appropriate.

[15] I can understand the thrust of Mr Harrison's submissions to the effect that these rules, particularly rule 375, seem more concerned with fact matters and circumstances which might arise once proceedings have commenced, but before the conclusion of the litigation. In my view though, while that argument may well work against the operation of rule 375, it does not operate in that way against the operation of rule 371 which in the light, particularly of the philosophy reflected in rule 5, ought to be read in as broad a way as possible so as to ensure the efficient disposition of matters.

[16] The wording of rule 371 also does not, in my view, require such strict compliance to the extent as to rule out any ability to regularise an irregularity in appropriate circumstances. In conclusion, I do not consider the irregularity identified warrants the enforcement warrant being set aside. As for the application for the stay, in paragraph 17 of the applicant's written submissions it is asserted:

If it is decided that the enforcement warrant ought not be set aside for these errors, it is submitted that the enforcement warrant should be stayed pending (a) the application to the Court of Appeal seeking that paragraph 4 of the order of - dated 28 August 2015 be varied or amended to correct the error in calculation of interest (b) the appeal to the Court of Appeal of McGill SC DCJ's decision to dismiss the plaintiff's claim for want of Prosecution and (c) if the appeal is successful the subsequent retrial.

[17] Just some general observations about those matters. I am not at all sufficiently satisfied that there has been an error in calculation of interest of the type agitated for on behalf of the applicant. There is no doubt as to the 60 cents per day discrepancy, but, as I said, I am not sufficiently satisfied of the alleged financial consequences as calculated by the applicant. Thereafter various grounds are set out which are said to substantiate the granting of the stay.

[18] Reference is made to the decision of Asia Pacific International Proprietary Limited v Peel Valley Mushrooms and Another [1998] QCA 414; [1999] 2 Queensland Reports 458 where at pages 463 to 464 Chesterman J as he then was conceded that in an application for a stay of an interlocutory judgment pending appeal, it would be necessary for it to be shown that first there was a good arguable case, second, the applicant would be disadvantaged if the stay was not ordered and whether there is some competing disadvantage to the respondent should the stay be granted which outweighs the disadvantage suffered by the applicant if the stay is not granted.

[19] As I understand it, all three of those thresholds need not be satisfied to warrant the granting of the stay. In respect of the arguable case point, even if I were to accept that good grounds or a good arguable case exists in respect of the decision of Judge McGill, a matter I must say I have some serious reservations about, but even proceeding on the basis that such an arguable case exists, I cannot see the relevance of that in the circumstances of this particular case.

[20] As to the disadvantages referred to, they are identified in paragraph 3. The first disadvantage is that the defendant nowhere identifies in his material any prejudice to him as a consequence of the fruits of the judgment being presently held by the plaintiff pending the outcome of the appeal. In my view, in cases such as this it is not necessary for the respondent to reveal prejudice to him.

[21] That said, the prejudice to him is obvious in the sense that if the relief was granted, he would be denied the benefits of the orders of the Court. The second matter raised is that nowhere in the defendant's material does he provide any assurance that he would be able to repay any judgment sum in the event that the applicant was eventually successful. In my view the respondent is under no obligation to provide any assurance that he would be able to repay that amount of money. It is on its face money that he is entitled to pursuant to the orders of the Court.

[22] It may well be that the respondent's interests are protected to some extent by accruing interest, but that that is not an answer to the more substantive prejudice to the respondent in being denied the capital sum of the award. Reference is also made to the financial means of the applicant by virtue of his extensive property portfolio to ensure a prompt repayment of the sum. I fail to see how this could be described as being a disadvantage to the applicant and having regard to the history of this matter, one cannot help but be a bit sceptical about the applicant's desire to ensure prompt repayment if required to do so.

[23] Thereafter it is submitted that a failure to grant the stay would create a real risk that the respondent would be unable to reimburse the applicant in the event that the applicant was eventually successful in revisiting the orders of the Court of Appeal. It is asserted that the respondent owns no real property. Second, that he was seriously unwell as at October 2012 and, lastly, that he has informed the applicant that he has a gambling problem.

[24] In respect of all three of those matters, one may rhetorically pose the question, "So what?" In this case the respondent is entitled, absent some circumstances which would warrant the situation being otherwise and they do not exist here, to the benefit of the orders that have been made. That the respondent was seriously unwell as at October 2012 seems largely irrelevant having regard to the fact that he is clearly alive and well enough to attend Court here today nearly three and a-half years after the date identified by the applicant.

[25] As to the respondent's gambling problem, that is set out in Mr Amos's affidavit at paragraph 28 where he says:

I was informed by the defendant a number of years ago that he had a gambling problem and that he had lost a vast sum of money by betting on horse racing at TAB outlets.

[26] That assertion - even accepting for the moment that it is an accurate one, in my view, is so vague as to be almost meaningless. In any event, even if the respondent is a gambler that is no basis for denying him the benefits of the orders of the Court. Accordingly, for the reasons that I have given, the applicant's application to set the warrant of execution aside is dismissed, as is the stay application.

[27] In respect of the question of costs the orders I will make are that the applicant, Amos, is to pay 80 per cent of the respondent's - Wiltshire's - costs of the application. That there is no express reference to costs in the material or the summons or the application, is in my view, not fatal. Here, the parties are well familiar with the ramifications of successful and unsuccessful litigation and I can see no reason why that would defeat the usual rule that costs will follow the event. Here, the respondent has been entirely successful in resisting the claim - the application made by Mr Amos. Also, I consider it relevant that on 20 June 2017, the respondent's lawyers advanced an approach essentially consistent with what will occur as a consequence of my reasons and that suggested course of action was roundly rejected by the applicant to the extent of asking for a consent order, to the effect that the warrant be set aside. Quite clear that the battle lines were drawn. The reason why I have reduced the costs by 20 per cent is in recognition of the fact that the respondent had to come to the Court to seek relief in the sense of revising or regularising the warrant, having regard to the time spent in respect of all the matters raised before me, doing the best I can and balancing the considerations, it seems to me that an 80/20 split is not unreasonable.

Proceedings Act 2011

[2] The unfortunate background to these proceedings is set out in the Court of Appeal judgment of Amos v Wiltshire [2016] QCA 77, at paragraphs 2 through to 7. At the risk of understating things, the history reveals a reluctance on the part of the applicant to part with his money, even if so ordered to do so by the Court. In any event, on 28 August 2015, the Court made a number of orders and, in particular, order 4, which provided:

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