Penson v Titan National Pty Limited [2015] NSWCA 120 | Case summary

[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.]

Judgment

JC CAMPBELL AJA: Ms Shirley Penson has proceedings on foot in the Court of Appeal in which she seeks leave to appeal against various orders that have been made in the District Court. She has filed a Notice of Motion seeking those orders be stayed until further order of the Court of Appeal. That Notice of Motion is before me today.
Ms Penson seeks to appeal against a total of six different orders in the District Court. Her application for a stay relates to all of them. There is considerable complexity in the proceedings to date and it will take a little while to give an account of them. However, I think the only way of making sense of the proceedings is to start at the beginning and deal with events chronologically.
Ms Penson is the shareholder and director of a company called Aquaqueen Pty Limited. It had entered into a lease from a company called Titan National Pty Limited of some premises in which Aquaqueen conducted a business of bottling water. Ms Wood-Weber was an officer of Titan and a shareholder in it. Aquaqueen sued Titan and Ms Wood-Weber in the District Court concerning certain losses Aquaqueen claimed it had suffered as a result of the lease it had entered into from Titan. There was also a third defendant in those proceedings, a Mr Webber, but he is not a party to the present proceedings in the Court of Appeal.
The District Court proceedings were begun after the lease had come to an end. They related to some losses that Aquaqueen claimed had resulted from the way in which the leasehold tenancy had operated. At the time Aquaqueen's proceedings against Titan, Ms Wood-Weber and Mr Webber were begun, they had a file number of 2009/00004600. Later, possibily as a result of computerisation of the court's records, they were given a file number of 2009/00337626. I will refer to those proceedings as the 2009 Proceedings.
On 6 June 2011 his Honour Judge Williams delivered some reasons for judgment dismissing the plaintiff's claim in the 2009 Proceedings and ordering the plaintiff, Aquaqueen, to pay the costs of the defendants. On 24 June 2011 his Honour made costs orders in the 2009 Proceedings against Aquaqueen and Ms Penson jointly and severally. He also ordered those costs be paid on an indemnity basis from a date in February 2010. That date was a date on which the defendants had made an offer of compromise to Aquaqueen. Williams J also made some other costs orders that are not presently material.
There has been no appeal against the substantive orders made in the 2009 Proceedings nor against any of his Honour's costs orders in those proceedings. However, after the costs payable concerning the 2009 Proceedings had been assessed, there was an appeal to a costs review panel concerning the quantum of the assessed costs. That appeal was dismissed.
District Court Proceedings numbered 2014/00017976 were proceedings that appealed against the decision of the costs review panel. I will refer to those proceedings as the Costs Appeal Proceedings.
There is also a third set of proceedings in the District Court that are numbered 2014/00137439. They are a set of proceedings that recorded a judgment for the amount of costs found to be due after the costs assessment process had completed. Uniform Civil Procedure Rules (UCPR) r 36.10 permits a costs assessor's certificate to be filed either in the proceedings to which it refers or in fresh proceedings, whereupon judgment is entered for the amount stated in the certificate. It was the latter course that was taken in the present case. I will refer to the proceedings giving judgment for the amount of the certificate of the costs review panel as the Costs Judgment Proceedings.
While that is a general outline of the nature of the proceedings in the court below, the present proceedings can only be understood by looking in a little more detail at what happened in the District Court. On 2 September 2013 an assessment certificate was issued for costs in the sum of $111,416.95. The cost of the assessment in the sum of $1,787.04 was ordered against Aquaqueen and Ms Penson. The certificate quantifying the costs bears a note that it was sent on 1 October 2013.
On 31 October 2013 Aquaqueen and Ms Penson applied to the District Court for a review of that costs certificate.
On 5 December 2013 Titan and Ms Wood-Weber obtained a judgment based on the assessment certificate that had been issued on 2 September 2013.
On 11 December 2013 the Costs Review Panel affirmed the costs assessment of 2 September 2013 and a certificate of determination of the costs assessment issued on 2 September 2013.
On 20 January 2014 Aquaqueen and Ms Penson filed a summons commencing the Costs Appeal Proceedings. The defendants were Titan, Ms Wood-Weber and the three lawyers who had conducted the original cost assessment and the costs review process. That summons instituted an appeal pursuant to ss 384 or 385 of the Legal Profession Act 2004 against the whole of the decision of the Costs Review Panel.
On 28 March 2014 Ms Penson filed an amended notice of motion in the 2009 Proceedings seeking to set aside the costs judgment that had been obtained on 5 December 2013. That judgment had been premature, because it was based upon a certificate of assessment concerning which a review had been instituted. However, because the review affirmed the original assessment, the substance of the judgment of 5 December was correct.
On 22 April 2014 an amended summons was filed in the Costs Appeal Proceedings.
On 1 May 2014 her Honour Judge Truss dealt with a notice of motion in the 2009 Proceedings. With the consent of Titan and Ms Wood-Weber the court ordered that the judgment that had been obtained on 5 December 2013 be set aside. There was an order that the original assessment certificate, and the determination of the costs assessor concerning it, be removed from the document that had been filed by the first and second defendants on 5 December and returned forthwith to the solicitors for Titan and Ms Wood-Weber. The notice of motion was dismissed. The plaintiffs, that is Aquaqueen and Ms Penson, were ordered to pay the defendants' costs of the motion on and from 7 April 2014 up to 1 May 2014 on a party and party basis.
On 1 May 2014 Truss J also dealt with an application that had been filed in the Costs Appeal Proceedings. She gave some directions concerning the Costs Appeal Proceedings and ordered that they be listed for hearing on 7 May 2014. Ms Penson was allowed to appear for the company on that occasion. The court foreshadowed that leave would not be granted on the next occasion to represent the company unless the requirements of UCPR 7.2 were satisfied. From the fact that Ms Penson did continue to represent the company later in the District Court I would infer that those requirements were indeed satisfied.
It is the judgment of Truss J on 1 May 2014 that is the first of the decisions against which Ms Penson seeks leave to appeal.
On 7 May 2014 there were two relevant events. First of all an order was recorded in the Costs Judgment Proceedings giving a judgment for Titan and Ms Wood-Weber against Aquaqueen and Ms Penson in the sum of $113,203.99. That was the total of the amount of the assessed costs, together with the costs of the costs assessment.
Also on 7 May 2014 her Honour Judge Truss determined an application that Titan and Ms Wood-Weber had made for security for costs in the Costs Appeal Proceedings. There was an order that an amount of $20,000 be paid into court.
The notice of motion that was before the court on that day was one that sought a variety of orders. Not all the orders sought in the notice of motion were pressed. In particular, prayers for relief seeking an order that the summons commencing the Costs Appeal Proceedings be summarily dismissed, and that Ms Penson and Aquaqueen pay the costs of Titan and Ms Wood‑Weber of the Costs Appeal Proceedings were not pressed. Likewise, an alternative order that Aquaqueen and Ms Penson pay into court the amount of the assessed costs and the amount of the costs assessor's cost was not pressed.
The order of Judge Truss of 7 May 2014 is the second of the orders against which leave to appeal is sought.
On 22 May 2014 a notice of motion was filed in the Costs Judgment Proceedings. It sought to stay the judgment that had been entered on 7 May.
On 23 May 2014 a further amended summons was filed in the Costs Appeal Proceedings. By that time Aquaqueen and Ms Penson had Ms Castle acting as counsel for them. The further amended summons radically changed the grounds of appeal that were proposed to be relied upon. This further amended summons was signed by Ms Castle as counsel, whereas the previous summonses in the Cost Appeal Proceedings had been signed by Ms Penson acting for herself and on behalf of Aquaqueen. The only ground of appeal that the further amended summons sought to press was that the review panel had been in error in determining that the costs ordered in four particular interlocutory proceedings should be paid on an indemnity basis rather than on a party-party basis.
On 30 May 2014 her Honour Judge Gibson delivered judgment in the Costs Appeal Proceedings. She noted that the only grounds of appeal related to the difference between indemnity and party-party costs concerning the four interlocutory decisions and estimated that that difference was at most a sum of a little less than $2,100. She dismissed the summons and ordered the plaintiffs to pay the costs of the defendants. Ms Penson does not seek to appeal against Judge Gibson's decision of 30 May 2014.
On 25 July 2014 a notice of motion was filed in the Costs Appeal Proceedings by Titan National and Ms Wood-Weber seeking, in broad terms, an order that the costs order of Gibson J made on 30 May be on an indemnity basis, that costs thrown away by reason of the further amended summons be on an indemnity basis, and that all cost orders in the proceedings take the form of lump sum cost orders.
On 1 August 2014 the notice of motion of 25 July 2014 in the Costs Appeal Proceedings was listed before her Honour Judge Balla. At the hearing on that day Ms Penson and Aquaqueen filed in court an amended notice of motion, this time in the Costs Judgment Proceedings, seeking a stay and mediation. Balla J dismissed that notice of motion, with an order for indemnity costs against Ms Penson and Aquaqueen. The application for costs to be paid by way of a fixed cost order was stood over to be before Judge Gibson, on 8 August 2014. The decision of 1 August 2014 is the third of the decisions concerning which Ms Penson seeks leave to appeal.
On 8 August 2014 all three of the proceedings that were then current in the District Court were listed before Judge Gibson. Ms Penson sought and was granted an adjournment. Directions for the further hearing of the notice of motion were given, costs were reserved and the Judge noted that if a lump sum order were to be made for the costs of that day it would be $1,000 for all three matters.
On 19 August 2014 all three matters came before Gibson J. In particular, the notice of motion that was filed in the Costs Appeal Proceedings on 25 July 2014 came on for hearing. Ms Penson was not present on that day. She had emailed the Judge's associate seeking a fortnight's adjournment, but the Judge declined to grant the adjournment. The Judge made different orders in the three different sets of proceedings. In the 2009 Proceedings she not only refused the adjournment with costs but she also dismissed a notice of motion that Ms Penson and Aquaqueen had filed on 15 May 2014. That notice of motion was one that sought orders to stay or set aside the judgment and orders made on 1 May, to strike out any defence filed by Titan and Ms Wood-Weber in the 2009 Proceedings, to disallow all the evidence of Titan and Ms Wood-Weber, to hear an amended notice of motion that the plaintiffs had filed on 28 March 2014 (which, I interpolate, sought a stay of the costs judgment obtained by the first and second defendants on 5 December 2013 and an order setting aside or reversing all enforcement actions relating to the costs judgment that had been given on 5 December 2013 and an "order for costs including disbursement and court filing fees payable to [Aquaqueen] by the first and second defendants upon presentation of an itemised bill not subject to the costs assessment.")
Other orders that Judge Gibson made on 19 August 2014 in the 2009 Proceedings were that the plaintiffs were to pay the costs of the costs appeal and subsequent applications including notices of motion in all three sets of proceedings on an indemnity basis. She ordered that the plaintiffs pay the first and second defendants costs of the appeal and the proceedings before Balla J in a total gross fixed sum of $77,747.78 giving the plaintiffs credit for $20,000 security for costs making a judgment sum of $57,747.78. She also made some orders for interests on costs, and other orders of a more mechanical kind.
The orders that Judge Gibson made on that day in the Costs Judgment Proceedings included an order that the notice of motion filed in the Costs Judgment Proceedings on 22 May be dismissed. (That notice of motion had sought to stay the judgment that had been entered on 7 May 2014). The notice of motion that had been filed on 1 August 2014 seeking a stay and mediation was dismissed. There was an order that any costs payable by Aquaqueen and/or Ms Penson were to be paid in accordance with Gibson J's judgment of 19 August in the 2009 Proceedings or Balla J's judgment of 1 August 2014. There was also an order that any application by Aquaqueen or Ms Penson for costs from the plaintiff was dismissed.
In the Costs Appeal Proceedings on 19 August Gibson J made orders dismissing certain notices of motion of 4 April, 7 May and 25 July. She ordered that any costs payable by the plaintiffs were to be paid in accordance with her Honour's judgment of 19 August 2014 or Judge Balla's judgment of 1 August 2014. She dismissed any application by the plaintiffs for costs from the defendants.
It will be observed that one of the orders made on 19 August 2014 was a lump sum order which quantified the order for costs that had been made in the Costs Appeal Proceedings on 30 May 2014, which Ms Penson had not sought to appeal against. However, the judgment of 19 August 2014 is the fourth of the judgments against which Ms Penson seeks to appeal.
On 25 August 2014 a notice of motion was filed in each of the 2009 Proceedings, the Costs Appeal Proceedings and the Cost Judgment Proceedings. The orders that it sought were: "(1) A stay of the orders that had been made on 19 August; (2) That the orders made on 19 August 2014 be set aside or varied under UCPR 36.16; (3) That the notices of motion filed on 15 May, 22 May and 1 August 2014 in the 2009 Proceedings and the Costs Judgment Proceedings, and the defendant's remaining notice of motion filed on 4 April in the costs assessment proceedings be heard." The notice of motion also sought costs and any other orders the court saw fit. That notice of motion was listed for hearing on 26 September 2014.
Ms Penson asked for the return date of the notice of motion to be changed because it was inconvenient to her. The return date was then altered to 5 October 2014. The hearing was then adjourned to 9 October 2014. On 26 September 2014, Ms Penson advised the respondents and the court that she had to travel overseas for business on Friday 3 October 2014 for approximately a week. She supported her need to travel overseas by an email in the Chinese language which in the material which she supplied to the court was translated only by Ms Penson. The judge's associate happened to understand the Chinese language, and supplied the judge with a translation which differed from Ms Penson's, and which did not reveal any urgency requiring Ms Penson to travel to China. More importantly than this, before her departure Ms Penson was provided with a copy of the decision of the Court of Appeal in Roskott v Commonwealth Bank of Australia [1] which sets out the sort of material the court usually requires before it will adjourn a hearing on the basis of the asserted inability of an applicant to be present.
On 9 October 2014, Ms Penson's notice of motion of 25 August 2014 was listed for hearing. Ms Penson was not present. Evidence of the type identified in Roskott had not been filed. Judge Gibson dismissed the notice of motion and ordered Aquaqueen and Ms Penson to pay the costs of Titan and Ms Wood-Weber on an indemnity basis in the lump sum of $5,700. This is the fifth of the decisions against which Ms Penson seeks leave to appeal.
On 20 October 2014, Aquaqueen and Ms Penson filed a notice of motion in the Costs Judgment Proceedings (and only in the Costs Judgment Proceedings) seeking a stay of the orders made on 9 October 2014, an order pursuant to rule UCPR 36.16 setting aside "the judgment orders made on 9 October 2014", and an order that the court hear the previously pending notices of motion that had been listed in the notice of motion filed on 25 August 2014.
On 20 November 2014 there was an order in the Supreme Court that Aquaqueen be wound up. That order was stayed for 14 days, and there were some extensions of that stay on later occasions.
On 21 November 2014, Judge Gibson heard the notice of motion that had been filed on 20 October 2014. Judge Gibson dismissed the motion and ordered Aquaqueen and Ms Penson to pay the costs as a lump sum of $2,000. This is the sixth of the decisions against which Ms Penson seeks leave to appeal.
On 11 February 2015, the winding-up order in relation to Aquaqueen became effective, when McColl JA refused to extend a stay of the winding-up order. [2]
On 23 February 2015, a summons was filed in the Court of Appeal, by Ms Penson alone, seeking leave to appeal against five judgments, said to be of Judge Gibson, given over the period 1 May 2014 to 21 November 2014. That summons was amended on 13 April 2015, to make clear that the leave was sought concerning the six judgments that I have earlier identified.
On 2 February 2015, Ms Penson was notified by the sheriff that three writs for the levy of property had been issued against her. In the 2009 Proceedings there was one writ for a little less than $60,000 and another for a little over $6,000. In the Costs Judgment Proceedings there was a writ for a little over $127,000. Thus the total amount of the writs is a little more than $200,000. Post judgment interest will undoubtedly be accruing on the amounts.
Aquaqueen was on a very limited number of occasions in the history I have recounted represented by a lawyer. However, on the vast number of appearances in the District Court, Aquaqueen was represented by Ms Penson acting as its corporate representative. Throughout the protracted history the only money that Titan and Ms Wood-Webber have received on account of the costs that Judge Williams ordered has been the amount of $20,000 was paid into court as security.
In Vaughan v Dawson [2008] NSWCA 169 I summarised the principles concerning a grant of stay pending appeal as follows: "[15] It is common ground that the lodging of an appeal does not operate as a stay of execution of the judgment below: Uniform Civil Procedure Rule 51.44. [16] It is unexceptional principle that a successful party is prima facie entitled to the fruits of his judgment. That principle has recently been re-affirmed in this Court in Kalafair Pty Limited v Digitec (Australia) Pty Limited [2002] NSWCA 383; (2002) 55 NSWLR 737 at [28]. What that "prima facie entitlement" means, in practical effect, however, is that the onus is on an applicant for a stay to make out a case that it is suitable for the court to award a stay. This is recognised in Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 at 694, when the court held that it was for the applicant to demonstrate a proper basis for a stay that will be fair to all parties. [17] There are some significant differences between the granting of an interlocutory injunction and the granting of a stay pending an appeal concerning the manner in which the order operates. The interlocutory injunction operates solely as a command by the court to the litigant. In contrast the stay operates through statutory provisions whereby the various machineries through which the court allows execution of judgment to take place cannot operate when a stay has been ordered, and whereby the procedures for obtaining the bankruptcy of an individual or the winding of a corporate debtor do not run what would otherwise be their usual course. Notwithstanding these differences a practical objective of both types of orders is the same, namely to establish a basis on which the inevitable lapsing of time between the initiating of legal proceedings and the ultimate determination of them will cause injustice, to the minimum extent possible, to those involved in the litigation. Thus for both types of order it is appropriate to consider whether there is a serious question to be tried and, if there is, where the balance of convenience lies. That approach has also been confirmed in this court in Kalafair at [18]."
When a stay is granted the court should endeavour to preserve the status quo by protecting the judgment creditor from the risk of loss by framing orders, which, as far as practical, ensure that the existing value of the judgment appealed against will still be available to the judgment creditors if the appeal fails: Kalifair v Digi-Tech at [28].
One way in which this might be done is by requiring security as a condition of a stay; another is requiring an undertaking in the nature of a Mareva order. Kalifair at [28]-[32].
All those principles were stating concerning a stay pending appeal. Here the stay is sought pending an application for leave to appeal. That makes some slight differences in the way in which the principles apply. However, one fundamental principle on an application for a stay pending an application for leave to appeal is still that a party who has succeeded in the court below is prima facie entitled to the fruits of judgment.
Another fundamental principle that the court applies concerning an application for a stay pending leave to appeal is to apply is to ask what the interests of justice require. It is not necessary that special or exceptional circumstances be made out, but nonetheless the onus is on the applicant for a stay to demonstrate a proper basis for the stay that will be fair to all the parties.
Making a preliminary assessment about whether the applicant for leave to appeal has an arguable case is an essential preliminary. The applicant must show that there are serious questions for the determination of the appellate court.
The jurisdiction of the Court of Appeal to hear appeals in the District Court arises under s 127 of the District Court Act. That section requires leave for any appeal from a judgment or order as to costs only. It requires leave to appeal from an interlocutory order and it requires leave to appeal when the amount at issue is less than $100,000.
The right of appeal that is conferred by s 127 of the District Court Act is limited to a judgment or action or order in an "action" in the District Court. "Action" does not include statutory appeals to the District Court from other tribunals or decision-makers. Thus an appeal to the District Court from a decision of a costs assessment review panel is not an "action" and no appeal lies to the Court of Appeal under s 127 concerning it: Muldoon v Church of England Children's' Home Burwood [2011] NSWCA 46 80 NSWLR 282 at [11], Riva NSW Pty Limited v Fraser [2014] NSWCA 454 at [13].
I drew Ms Penson's attention to the Muldoon decision when this matter was before the court on an earlier occasion. [3] She submits that her applications for leave to appeal are not within the scope of the Muldoon decision because she is not appealing against the decision of Judge Gibson that rejected the costs assessment appeal on 30 May 2004.
In written submissions that she provided to the court Ms Penson says: "The core issue of the appeal is the depriving of natural justice and its consequences for not affording a fair hearing of a number of interlocutory during the course of proceedings associated with the statutory appeal, as well as with the costs consequences of such unheard proceedings."
That strikes me of being a fair general summary of what Ms Penson is claiming. However it reveals a very significant difficulty in Ms Penson's application. It is not only concerning the actual decision of Judge Gibson of 30 May 2014, that s 127 confers no right of appeal.
The right of appeal under s 127 exists concerning "a judgment or order in an action" (emphasis added). That requires one to look at whether the judgment or order has been given in court proceedings that count as an "action".
All the interlocutory decisions that had been given in the Costs Appeal Proceedings are decisions that were not given in an "action". For that reason, no appeal lies concerning any of those interlocutory decisions. Thus the application for leave to appeal concerning any order that was made in the Costs Appeal Proceedings is an application for an order that the Court of Appeal lacks power to make.
Of the orders concerning which leave to appeal is sought orders made on 1 May, 7 May, 1 August, 19 August, 9 October and 21 November were made in the Costs Appeal Proceedings. On some of those occasions the relevant judge dealt with motions in proceedings other than the Costs Appeal Proceedings as well. However, concerning the application for leave to appeal against the orders that were made in the Costs Appeal Proceedings I am not satisfied that the applicant has any prospects of obtaining leave to appeal.
There is not the same fundamental jurisdictional problem concerning seeking leave to appeal against the orders that were made in the 2009 Proceedings. I will also assume, though without deciding, that there is not the same fundamental jurisdictional problem concerning seeking leave to appeal against the costs orders that were made in the Costs Judgment Proceedings.
However, there are other problems concerning the applications for leave to appeal against orders made in the 2009 Proceedings and in the Costs Judgment proceedings. Ms Penson asserts in her written submissions that she has a "fundamental right to appeal". That is not so. The judgments against which she seeks to appeal and which were not given in the Costs Appeal Proceedings face three separate barriers under s 127 of the District Court Act to the grant of leave.
The first is that s 127(2)(a) requires leave to appeal from an interlocutory judgment or order. All of the judgments against which she seeks leave to appeal are interlocutory.
The second is that s 127(2)(b) requires leave to appeal concerning an appeal from a judgment or order as to costs only. Many of the judgments against which she seeks leave to appeal are as to costs only.
The third is that s 127(2)(c) requires leave to appeal concerning a judgment or order that involves broadly less than $100,000. Individually many of the orders against which leave to appeal is sought are for amounts well less than $100,000.
The amount of costs that arises from the order of Judge Balla on 1 August 2014 is at most $7,522.09. Ms Penson does not challenge all of that amount. In one part of her submission she asserts that the amount is excessive by about 40 per cent. She seeks to challenge various items in the bill of costs, individually. In another part of the submission she contends that at one time the fixed costs for 1 August 2014 had been estimated at $2,000, not the amount of a little more $7,500 that was ultimately awarded.
Her complaint about the decision of 9 October 2014 is, in essence, that she should have been granted an adjournment and was not granted it. The amount of costs ordered against her on 9 October was $5,700. The amount of costs ordered against her on 21 November was $2,000. The smallness of the amounts involved is in itself a powerful reason why leave to appeal concerning them is unlikely to be granted.
One of Ms Penson's contentions is that an indemnity costs order should not have been made against her personally, when all she was doing was acting as a company officer who had an obligation to protect the interests of the company. Whenever a company officer is granted the privilege - not available to most people who are not legal practitioners - of appearing in court for someone else, namely their company, that always brings with it a risk of a costs order arising from appearing for the company. UCPR 7.2(2)(b) and 7.2(3)(d) expressly recognise that risk. Even if a company officer has a duty to the company to protect its interests, costs orders are made in proceedings by reference to matters including the outcome of the proceedings, and the manner in which the proceedings have been conducted. That a company officer is carrying out an obligation to the company does not preclude the court from making an indemnity costs order against the officer.
Another contention of Ms Penson concerns the fact that some of the orders that were sought by Titan and Ms Wood-Weber in the notice of motion 4 April 2014 have never been dealt with. They have never been dealt with, because they were never pressed by the mover of the motion.
Another contention of Ms Pension is that on 7 May 2014 a judgment was given erroneously in the sum of $113,203.99. That amount arises, fairly clearly, from adding together the amount of the costs that had been assessed by the costs assessor, and the amount of the costs assessor's costs of the assessment. She submits that that judgment is irregular.
She points to the decision of Ward J, as her Honour then was, in Kassem v Koutavas [2012] NSWSC 236. Her Honour there held that it was irregular to enter a single judgment amount for the amount of costs that had been held to be payable by A to B, and the amount of costs that A was liable to pay for the costs of the assessment procedure but that B actually paid. Her Honour held - in my respectful opinion, clearly correctly - that in circumstances where one party to a costs assessment procedure had been held liable to pay the costs of the assessment procedure, and the other party had paid the costs of the costs assessment, the party who had paid the costs assessment costs had a restitutionary right to recover the amount of the costs. This restitutionary right arose from the practice that is enshrined in the provisions of the Legal Profession Act governing assessment of costs, whereby the costs of costs assessment proceedings are payable to the manager, costs assessment, and the manager, costs assessment, refuses to issue a costs assessment certificate until such time as the costs of the costs assessment have been paid.
The party who has been successful in a costs assessment is, thereby, placed under a practical compulsion to pay the costs of the costs assessment procedure if it is to obtain the costs assessment certificate. It is this practical compulsion to pay the costs of the costs assessment certificate that gives rise to the restitutionary right to recover the amount so paid from the unsuccessful party who has been held to be liable to pay it.
In the present case Titan and Ms Wood-Weber paid the costs of the costs assessment procedure to the manager, costs assessment, as the only way in which they could obtain the costs assessment certificate.
Ward J held, in Kassem v Koutavas, that the appropriate form for judgments to take, as a result of a cost assessment certificate was (1) A is to pay B the sum of X dollars in respect of costs determined under the certificate of determination of costs, (2) A is to pay B the sum of Y dollars by way of reimbursement to A of the costs of the costs assessor determined under the certificate of determination of costs and paid by A in order to obtain the release of the respective costs certificates issued on that date.
No submission is made that Kassem was wrongly decided. The orders that were entered by the District Court, for $113,203.99, were irregular, in accordance with the decision in Kassem. However, no trace of substantial injustice arises from the irregularity in the form of the order that has been entered. Taking a point that there has been a single judgment for the combined amount of the costs assessed, plus the costs of the assessment, is a technicality of the most arid kind. If judgment had been entered in the manner that accords with the decision in Kassem, there would still be exactly the same amount of money owing by Ms Penson.
Granting of leave to appeal is far from automatic. In Carolan v AMG Bowling Pty Ltd [1995] NSWCA 69, followed in Zelden v Sewell [2011] NSWCA 56 at [22], Sheller JA said that an applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. Cole JA relied on a principle that where small claims are involved it is important that there be early finality in the determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute. Kirby P recognised that ordinarily it was appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable. Here the costs that have been incurred by Titan and Ms Wood-Weber in dealing with Ms Penson's disputes concerning the quantum of the costs order made by Williams DCJ are very large. I have seen an estimate at one stage of them as being in excess of $250,000, and have been told today that they are in excess of $400,000. Whatever they are, they are far more than the amount that could be involved in this dispute. Those costs are wildly disproportionate to the amount of less than $2,100 concerning which the costs appeal was eventually argued in the District Court. I have been unable to identify any issue of principle, any question of general public importance, or any injustice which is reasonably clear, that will arise concerning the appeal Ms Penson seeks to bring.
The Costs Judgment Proceedings have been given a separate file number in the District Court but are merely the procedural means of obtaining a judgment for the amount of costs that the costs review panel has arrived at and the District Court has confirmed. The entirety of the amounts concerning which the applicant seeks leave to appeal are in substance amounts of costs incurred in the course of challenging the quantum of the enforceability of the costs orders in the 2009 Proceedings. When this Court lacks the power to review the quantum of costs that have been ordered in the 2009 Proceedings it would be very slow indeed to review orders that were made in connection with challenging the quantum of those costs orders.
There is no offer made of any conditions upon which a stay might be granted such as a payment into court or the provision of security. This is, by itself, a significant obstacle to any grant of leave to appeal.
Ms Penson asserts that not granting a stay will frustrate her appeal. She relies on a statement of this Court in McLean Technic Pty Ltd v Digi-Tech (Aust) Ltd [2002] NSWCA 383 at [16] to [18]. That case is reported, under the name Kalifair Pty Ltd v Digitech (Aust) Ltd (2002) 55 NSWLR 737. The particular principle on which she seeks to rely is a statement, quoted in Mclean Technic Pty Ltd v Digitech (Aust) (at [17]), from Alexander v Cambridge Credit that there is a principle that where there is a risk that an appeal will prove abortive if an appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay.
The present case differs from McLean Technic Pty Ltd v Digi-Tech (Aust) Pty Ltd in that, as [14] in McLean Technic makes clear, in McLean the appeals were commenced within time, and lay as of right. Here, leave is necessary for the appeals, and (as I will explain later) the applications for leave to appeal are out of time. As well, the respondent in McLean accepted that there was a good prima facie case for arguing that the trial judge fell into error. The respondents in the present case make no such concession.
A similar argument to that which is presented to me now was presented to McColl JA earlier this year in Aquaqueen International Pty Ltd v Titan National Pty Ltd (2015) NSWCA 9. McColl JA quoted from the judgment in Kalifair at [18]: "Thus the relevant principles are analogous to those which govern the grant of interlocutory relief before trial to protect the status quo. The appellant must show that the appeal raises serious issues for the determination of the appellate court and that there is a real risk that he will suffer prejudice or damage if a stay is not granted which will be redressed by a successful appeal. This requirement will be satisfied if the appeal will be rendered abortive or nugatory unless a stay is granted. If these pre-conditions are established the Court will then consider the balance of convenience."
After quoting that passage, her Honour continued, at [48]: "As is apparent, it is not sufficient to order a stay that otherwise the appeal would be nugatory. The applicant for a stay must first demonstrate 'that the appeal raises serious issues for the determination of the appellate court'"
I respectfully agree with her Honour's statement of the principles involved. Ms Penson has not demonstrated that there are serious issues for the Court of Appeal to decide.
Quite apart from these legal difficulties there is no evidence which says with any clarity that if Ms Penson is not granted the stay she will be unable to continue with her application for leave to appeal and for an extension of time. The writs that I have mentioned have issued against her. She does not assert that her assets are insufficient to pay the amount of those writs (though she does assert that payment will cause her financial difficulties). As well, she frequently appears for herself, and there is no evidence to the effect that she would be unable to pay for the incidental costs of running litigation like copying and filing fees that a litigant in person must pay to advance litigation.
There is an additional problem that Ms Penson faces in seeking a stay. A summons seeking leave to appeal must be filed within 28 days after the material date: UCPR 51.10. Under the definitions in UCPR 51.2 the material date is the date on which the decision appealed against is pronounced or given. The dates of all of the various decisions against leave to appeal is sought are more than 28 days before the date on which the application for leave to appeal was filed (23 February 2015). Thus extensions of time would be needed as well, from the material date of each of the decisions appealed against.
Whether a stay should be granted would depend not only on whether a case was made out for leave to appeal, but also on whether a case was made out for extension of time. The principles concerning extension of time for leave to appeal have recently been considered by McColl JA, with whom I agreed, in Nanschild v Pratt [2011] NSWCA 85 where her Honour said, at [38] - [39]: "[38] The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. This means that the discretion can only be exercised upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 (at 459) per McHugh J. [39] The underlying premise to these propositions in Gallo (as is made apparent in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 (at [7]) per Brennan CJ and McHugh J) is that the Court's approach to an application to extend the time for filing an appeal from a judgment determining substantive rights (or here to seek leave to appeal) 'at any time' recognises that 'the respondent to the application has a vested right to retain the judgment' proposed to be the subject of appeal: Jackamarra v Krakouer (at [4]); Tomko v Palasty (No 2) [2007] NSWCA 369 (at [55]) per Basten JA (Hodgson and Ipp JJA agreeing)."
In Tomko v Palasty (No 2) at [55] Basten JA had identified four relevant factors in deciding whether to grant an extension of time as being the length of the delay, the reasons for the delay, whether the applicant has a fairly arguable case, and the extent of any prejudice suffered by the respondent. It is also relevant that in Tomko v Palasty (No 2) at [14] Hodgson JA said: "There may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an in indulgence such as this and to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice then a fairly arguable case is sufficient. However if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice then it may be relevant for the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable."
In the present case there is no real explanation for the delay that there has been in seeking leave to appeal against the decisions concerning which leave to appeal is sought.
Applying all these principles, I am not satisfied that an arguable case has been made out that requiring compliance with the rules about the time within which leave to appeal must be sought would work an injustice on the applicant. The history of the proceedings shows repeated procedural efforts of Ms Penson which have had the effect of delaying and frustrating Titan and Ms Wood-Weber from obtaining the benefit of the costs orders they obtained as long ago as 2011.
The case for obtaining leave to appeal is, to put it at its highest, extremely thin, concerning the decisions other than those made in the Costs Appeal Proceedings. Concerning the decisions made in the Cost Appeal Proceedings, I can see no case for obtaining leave to appeal at all.
There is some reason to believe that if the judgment is paid while an appeal is pending and, contrary to my firm views concerning prospects, leave to appeal is granted and the appeal succeeds then Ms Wood-Weber will be able to repay it.
Further, in my view the applicant has failed to demonstrate a basis upon which a stay could be granted that would be fair to all parties. In all these circumstances I decline to grant a stay pending the hearing of the application for leave to appeal. The applicant's notice of motion of 13 April 2015 is dismissed.
[Discussion and directions given concerning deciding the costs of the notice of motion.]

Penson v Titan National Pty Limited

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (4 paragraphs)

Parties

Cases Cited (21)

Cited By (12)