Macfarlan JA, Meagher JA, Handley JA, Powell JA, McLelland CJ
Catchwords
Handley JA
Powell JA
File Number(s): 1996/32322 (formerly 40649 of 1996)
Source
Original judgment source is linked above.
Catchwords
Handley JAPowell JA
File Number(s): 1996/32322 (formerly 40649 of 1996)
Judgment (3 paragraphs)
[1]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
MACFARLAN JA: By notice of motion filed on 21 April 2022, Mr Ross Valentine Coulthard ("the applicant") seeks an order that all funds in Court referable to the appeal proceedings Lenny Le Boursicot v Jack Coulthard by his tutor The Protective Commissioner of New South Wales (proceedings 1996/32322) be paid out to him and that service of the notice of motion upon the appellant (the respondent to the motion), Ms Lenny Le Boursicot, be dispensed with. The appeal proceedings were determined by judgment of this Court of 24 June 1997 (see Le Boursicot v Coulthard (1997) Aust Contract R 90-082).
On or about 19 March 1993 the Protective Commissioner of New South Wales had been appointed to manage the affairs of Mr Jack Coulthard who was a protected person and the applicant's uncle. On or about 16 June 1994 the Commissioner commenced proceedings on Mr Jack Coulthard's behalf against Ms Le Boursicot to recover money that Ms Le Boursicot allegedly procured from him by the exercise of undue influence.
The judgment from which the appeal referred to in [1] above was brought was delivered by McLelland CJ in Eq on 18 October 1996. His Honour inter alia ordered Ms Le Boursicot to pay to the plaintiff in the proceedings, Mr Jack Coulthard, the sum of $211,505 including interest and to take all necessary steps to transfer to Mr Coulthard a property situated in Mosman, Sydney.
Ms Le Boursicot filed a notice of appeal on 6 November 1996 and on
16 December 1996 Registrar Jupp ordered that she provide security for costs of the appeal in the sum of $15,000. That sum was duly paid into Court by two instalments, one on 11 February 1997 and another on 4 April 1997. The appeal was dismissed with costs on 24 June 1997.
Mr Jack Coulthard died on 29 May 2012, leaving the applicant as his sole surviving relative and, pursuant to s 129(3) of the Succession Act 2006 (NSW), his sole beneficiary. The applicant was granted letters of administration of the estate on 18 March 2013.
Despite the passage of some 25 years, the money paid into Court by way of security remains in Court. The amount held by the Court as at 21 March 2022 was $36,600.88 comprising the principal amount of $15,000, and interest of $22,154.75, less commission of $553.87.
In an affidavit sworn on 21 April 2022, the applicant's then solicitor, Mr Christopher Sydes, describes concerted efforts he made over the last few years to obtain a copy of, or at least details of, a certificate of determination of the quantum of the costs to which the deceased became entitled under the costs order made in his favour on dismissal of the appeal. As a result, he established that a costs assessment process was initiated by the Protective Commissioner and that it did reach a conclusion. He was however unable to obtain a copy of the costs certificate but did obtain the Bill of Costs prepared on behalf of the Commissioner in respect of both the equity and appeal proceedings. It is a very detailed document assessing the total costs to which the deceased was entitled as $197,660 in respect of the equity proceedings and $23,969 in respect of the appeal proceedings. The assessment based on this Bill of Costs appears to have taken place in early 1998.
Mr Cameron Sydes was subsequently able to obtain a copy of a bankruptcy notice served on Ms Le Boursicot on 13 December 1999. Non-compliance with the bankruptcy notice led to a sequestration order being made in relation to Ms Le Boursicot's estate on 14 August 2000. That notice referred to the claimed amount as including the amount of $234,784.74 payable pursuant to a certificate as to the determination of costs dated 21 May 1998. This amount approximates that in the Bill of Costs referred to above and enables me to conclude that the costs of the appeal proceedings in this Court were assessed in the vicinity of the amount of $23,969, as stated in the Bill of Costs. The notice and its attachments also enable me to conclude that, not only was a certificate of determination issued in respect of those costs, but that that certificate was filed in Court and by reason of s 208J(3) of the Legal Profession Act 1987 (NSW), gave rise to a judgment in that amount. The precise date upon which the judgment was entered is not known but it must have occurred before the date of service of the bankruptcy notice in December 1999.
There being a judgment in respect of the appeal costs, at least from the end of 1999, interest accrued from that time (Supreme Court Act 1970 (NSW) s 95(1); Civil Procedure Act 2005 (NSW) s 101(4); UCPR r 36.7). I infer that the amount of the interest that accrued in respect of that judgment in the subsequent 22 years to the present time is sufficient when added to the judgment amount to bring the applicant's entitlement in respect of the appeal costs plus interest from $23,969 to at least the amount presently in Court. Subject to the question of service discussed below, the applicant has therefore established an entitlement to be paid to him the money still in Court.
I note in passing that the costs incurred in the equity proceedings are not relevant to the applicant's entitlement to be paid the funds held in Court. The payments into Court were made in response to an order for security for the deceased's costs of the appeal proceedings only, not those of the Equity Division proceedings.
There remains only the question of whether an order should be made dispensing with service of the applicant's notice of motion on Ms Le Boursicot.
As to this, Mr Sydes' affidavit establishes the following:
1. On a number of occasions the Court sent notices to Ms Le Boursicot, at various addresses, advising her that money was held in trust in relation to the proceedings. Such letters were sent on 20 October 2017 to two different addresses and on 12 April 2019 to one of those addresses.
2. Mr Sydes is unaware whether there was any response to those letters but the Court file does not reveal any.
3. As noted above, a sequestration order was made in respect of Ms Le Boursicot's estate on 14 August 2000 on a creditor's petition filed on behalf of the deceased.
The applicant submits that in these circumstances it is not practicable for him to notify Ms Le Boursicot of his application. He submits that considerable investigation expenses, as well as additional legal costs, would have to be incurred if further efforts had to be made to locate Ms Le Boursicot, without any certainty that the investigation would be successful. He indicates that he has no knowledge of the whereabouts of Ms Le Boursicot and has never had any contact with her, save for being present in Court when he was called as a witness in the Equity Division proceedings before McLelland CJ in Eq between 1995 and 1996.
These matters, considered in the context of the strength of the applicant's claim to the funds, persuade me that an order dispensing with service of the notice of motion should be made.
I note in passing that the applicant sought an order for payment out of Court under UCPR r 55.11 but that rule is concerned only with matters arising under the Trustee Act 1925 (NSW) (see for example the heading to Pt 55 of the UCPR and Dana Rahme v Benjamin & Khoury Pty (ACN 104 057 043) [2016] NSWSC 774 at [12] (Rein J)). Instead, the order can, and should, be made pursuant to the power implicitly conferred by UCPR r 41.3(1) ("[d]eposited funds may not be withdrawn or paid except by the authority of these rules or of a judgment or order") or the inherent powers of this Court. As pointed out in Hamilton, Lindsay and Webster, New South Wales Civil Procedure Handbook 2022 (12th ed, 2022, Lawbook Co) at par [r 41.3.30], "[t]here is no general provision contained in Part 41 or elsewhere in the Rules expressly permitting the court to make orders for monies to be paid out of court, but it is likely that such a power would be inferred from r 41.3."
For these reasons, I order that:
1. Service of the notice of motion filed on 21 April 2022 be dispensed with.
2. All funds in Court in relation to appeal proceedings 1996/32322 (formerly 40649 of 1996) be paid out to the applicant, Mr Ross Valentine Coulthard.
[3]
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Decision last updated: 17 October 2022