Remely v O'Shea & Ors

[1] McMEEKIN J: The second respondents have obtained three orders against the applicant, Mr Remely, for costs.[1] They obtained an enforcement warrant for the seizure and sale of property in respect of one order totalling $31,664.22. The Registrar issued an enforcement hearing summons on 21 January 2009.

[2] Mr Remely now brings four applications before the court. The first seeks that the costs charged for the obtaining of the warrant be reduced from $470 to $230. The second seeks that the interest rate applicable under s 48(1) of the Supreme Court Act 1995 (Qld) ("the Act") be varied. The third seeks that an order to produce documents for the purpose of the enforcement hearing be set aside. The fourth seeks that the enforcement hearing be referred to a Judge. I will deal with each in turn.

[3] Mr Remely points out that Item 23 of the Supreme Court scale of costs allows only $230 for the costs of obtaining an enforcement warrant. He submits that the Registrar had no power to fix a higher sum.

[4] Mr Dickson, who appears for the second respondents, submits that in fact the scale fixes a sum of $240 but that is irrelevant. That is so, he submits, because the relevant scale is that of the Magistrates Court by reason of Rule 801 of the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR") and the amount allowed under that scale is $490[2] - $20 more than as fixed by the Registrar here.

[5] Rule 801 UCPR provides inter alia:

"(4) Unless the court in which a money order was made orders otherwise, the costs of the order's enforcement are recoverable only on -

(a) if the amount payable under the order is within the jurisdiction of a Magistrates Court, the scale of costs prescribed for Magistrates Courts; or

(b) if the amount payable under the order is within the jurisdiction of the District Court, the scale of costs prescribed for the District Court."

[6] Mr Dickson's submission seems plainly to be correct. The money order in issue is well within the Magistrates Court jurisdiction. There is no good reason why any other order than that provided for in r 801(4) should be made. It might well be, as Mr Dickson submits, that the amount allowed in the Supreme Court scale is anomalous and should be revised. Whatever be the case the Registrar has made no error, at least against Mr Remely's interests.

[7] Included in this application (headed "Application re Cost of Obtaining Warrant") is an application by Mr Remely under r 982(2) UCPR to have the matter transferred to a Judge of this Court rather than have the Registrar deal with the matter. The Registrar has no discretion when such an application is made but must accede to the application.

[8] Mr Remely considered that it was inappropriate that the Registrar deal with the matter given that it was his original decision to allow the disputed amount. I point out that the Registrars of the Court are well qualified and accustomed to apply the scale of costs to disputes. Before the introduction of the present system of assessment of costs it was a requirement of the Rules that before an appeal against the exercise of the discretion of a taxing officer of the court could be brought, that same taxing officer - usually a Registrar - was required to reconsider his decision, with the benefit of argument.

[9] There was no good reason why that course was not followed here. Given the amount in dispute and the simplicity of the argument it is plain that the matter ought to have remained with the Registrar.

"(1) Where judgment is given or an order is made by a court of record for the payment of money in a cause of action that arose after the commencement of the Common Law Practice Act Amendment Act 1972, interest shall, unless the court otherwise orders, be payable at the rate prescribed under a regulation from the date of the judgment or order on so much of the money as is from time to time unpaid."

[11] The Rate prescribed under regulation is 10%.[3]

[12] Mr Remely submitted that the rate was "clearly set some time ago in the past when cash monies returned very much higher rate that (sic) can be achieved under current circumstances."[4] No institution he submitted "currently ...offers returns at a rate of that magnitude."[5]

[13] Neither submission has any merit. The first submission is factually not accurate. The rates were set only in August last year. There is no evidence before me that interest rates have changed significantly since then.

[14] The second submission presupposes that it is the rate of return obtainable for secure deposits with a well capitalised lending institution that should provide the best guide to the applicable rate in respect of a recalcitrant debtor. That proposition needs only to be stated to be rejected. The second respondents have filed affidavit material demonstrating that the interest rates payable by those requiring an advance (which in one sense is Mr Remely's position he apparently not being able or willing to pay the monies ordered to be paid) for commercial purposes significantly exceeds 10%. They themselves have facilities that significantly exceed that sum.

[15] Mr Remely made submissions to the effect that there would be a taxation benefit of some sort accruing to the second respondents. There is no evidence of that and I cannot see that it would be relevant if such benefits did accrue.

[16] Far from the second respondents obtaining a windfall, as was submitted by Mr Remely, there is the prospect that they will be out of pocket.

[17] In the course of the hearing Mr Remely submitted that I had no discretion in the matter and hence he should not have brought the application. He was plainly wrong about the lack of discretion point - s 48(1) of the Act is clear in its terms. It may be that Mr Remely saw some forensic advantage in seeking to have the application withdrawn at that late point, although I cannot see what advantage there could have been to him in that submission.

[19] The order made in respect of the enforcement hearing requires Mr Remely to produce:

(a) Copies of all bank statements, cheque butts, and passbooks of all current accounts (either in his name or in his name jointly with another person) for the period 1 July 2007 to date;

(b) Copies of income tax returns, assessments and group certificates for the last four financial years ending 30 June 2008; and

(c) Copies of financial statements of any business in which he was involved for the last four financial years ending 30 June 2008.

[20] Mr Remely submits that the order should not have been made for several reasons:

(a) The orders are beyond the stated purpose of the enforcement hearing under r 803 UCPR;

(b) The statement of financial position in Form 71 filed by Mr Remely adequately supplies the information required under rules 803 and 809 UCPR;

(c) There is no retrospectivity in either Chapter 19 UCPR or the Social Security (Administration) Act 1999 (Cth) (Mr Remely is a pensioner);

(d) There is an existing warrant of execution over the only asset available to satisfy the money order, which the solicitors for the second respondent well know is the only asset, and which warrant can be exercised at any time;

(e) The enforcement can only be against current assets;

(f) The intention and purpose of Chapter 19 UCPR is clearly expressed in r 809(2) which requires provision of the dates of receipt only of the last four payments in respect of a person in receipt of social security benefits, as he is;

(g) Rule 212(1)(b) UCPR exempts documents going only to credit.

[21] The purpose of the enforcement hearing is set out in r 803 UCPR - it is to "obtain information to facilitate the enforcement of a money order". The information referred to in the rule is that information which will enable a judgment creditor to best secure payment of the monies owed and so satisfy the judgment debt. To a significant extent Mr Remely's submissions proceed from the premise that his statement of his financial position should suffice. That is plainly wrong. It hardly needs to be said that the judgment creditor is not limited to information concerning those assets that the debtor has revealed in his Form 71. So much is evident from r 809(3) which clearly envisages situations arising where the creditor is not satisfied with the information so provided.

[22] Mr Remely's real complaint, as emerged in the course of the hearing, is that the second respondents wish to make enquiry of his financial position leading up to the statement of affairs as disclosed in the Form 71. Plainly enough the second respondents are interested in determining whether Mr Remely has divested himself of assets, assets that the respondents can access more readily than by selling land, by placing them with relatives or third parties who might be well disposed towards him. In my view the second respondents are entitled to do that.

[23] No doubt there is a limit to which such enquiries can reasonably be pressed before they become oppressive. Mr Remely has asserted that the provision of the documents requested would be burdensome on him. It is unlikely that the order is particularly burdensome. Given that Mr Remely has asserted that he has been a pensioner for many years the only practical effect of the orders will probably be that he supplies his income tax information for 4 years to 30 June 2008 and bank statements and passbooks (and any cheque butts he might retain) going back to 1 July 2007. If he has not kept tax returns and assessments, bank statements and passbooks then documents of that type can usually be obtained from the tax office or relevant institutions respectively on the payment of a modest fee.

[24] Mr Remely's reliance on the limitation in r 809(2) that only the last four dates of receipts of social security payments be disclosed misunderstands what I perceive to be the purpose behind the rule. In many cases a judgment creditor might not proceed further with the enforcement hearing once it emerges that a judgment debtor's only source of income is by way of a periodic wage payment or receipt of benefit. Such information, if confirmed by four consecutive payments, combined with the requirements in r 809(2)(b) concerning the provision of particulars of accounts to which such payments were made, might be sufficient for the creditor to determine that there was no point to proceeding further. In some cases however, that may not satisfy the creditor. There is nothing in the rules which indicates that the enquiry can only go back eight weeks - social security benefits being typically paid fortnightly.

[25] Nor is it relevant that the second respondents have located, and registered a warrant against, land of which Mr Remely is the registered proprietor. As Mr Dickson points out the second respondents do not know the value of the land and whether it will in fact realise sufficient, after costs of sale are met, to satisfy the outstanding order. The question of whether there may be other monies more readily available to Mr Remely to satisfy the judgment debt, and which he might not have disclosed, can be legitimately pursued.

[26] Rule 212(1)(b) has no relevance to the enforcement hearing. That rule concerns the disclosure of documents in the course of a proceeding started by a claim.[6] The disclosure requirements in relation to the enforcement hearing are expressly dealt with in r 809. As r 809(3) makes plain the very issue on an enforcement hearing will often be the credit of the judgment debtor in the sense of whether he or she has made full disclosure of relevant assets. There is no warrant to import the provisions of the rules in Chapter 7 of the UCPR into hearings of this type.

[27] Mr Remely's submissions on retrospectivity and the availability of current assets, with respect, miss the point.

[28] Mr Remely relies on r 982(2) UCPR and asserts that no grounds are required to support the application. The only mater mentioned is an assertion that the Registrar has made orders for the provision of information that are not in accordance with Chapter 19 UCPR. I am not sure whether the allegation is intended to be one of incompetence or apprehension of bias.

[29] Whichever is the case neither ground is made out. The orders made by the Registrar in my view were perfectly proper ones.

[30] The test for apprehended bias is "whether a fair-minded, properly informed member of the public might reasonably apprehend that the decision-maker might not bring an impartial mind to bear on the decision."[7] There is no basis shown for any such reasonable apprehension.

[31] The practise in this Court has long been that the enforcement hearing is conducted by the Registrar of the Court. In the absence of any special or peculiar reason the usual procedure should be followed. There is no good reason here to depart from that procedure.

[32] Under r 982(3) UCPR I have the power to refer the matter to the Registrar for hearing which I propose to do.

[34] I refer the enforcement hearing back to the Registrar for hearing.

[1] Mr Remely's affidavit refers to a total amount of costs of $50,000. Mr Remely informed me in the course of the hearing that there were other orders but he had attended to payment of those orders. The amount already paid, he advised, exceeded $25,000. I observe that Fraser JA pointed out in one of the appeals brought by Mr Remely that the amount originally in dispute between the parties totalled less than $200: Remely v O'Shea & Anor [2008] QCA 111 para [6].

[2] See Item 13 "Enforcement Warrant" scale G for matters over $20,000 as updated at 23/09/08.

[3] s 4 Supreme Court Regulation 2008 reprint effective 31/8/08.

[4] See para 2 of the application filed 26 February 2009

[5] See para 3 of the application filed 26 February 2009

[7] Greenwood v Winsor & Anor [2008] QCA 415 per McMurdo P at [5].