Weal v Bathurst City Council and Anor

Land and Environment Court (NSW)|1998-07-17|Before: Bignold J

The Applicant's submission was said to be founded upon the provisions of the Legal Profession Act, s 208J which relevantly provides:

(1) On making a determination, a costs assessor is to issue to each party a certificate that sets out the determination.

(1A) A costs assessor may issue more than one certificate in relation to an application for costs assessment. Such certificates may be issued at the same time or at different stages of the assessment process. (2) In the case of an amount of costs that has been paid, the amount (if any) by which the amount paid exceeds the amount specified in any such certificate may be recovered as a debt in a court of competent jurisdiction. (3) In the case of an amount of costs that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs.

Upon reflection, I think, with respect, that the Applicant's submission involves a misreading of s 208J(3). In my judgment, properly construed, s 208J(3) does not have the effect of removing from this Court's procedures and province, the enforcement of the judgment for the amount of unpaid costs.

Accordingly, I must reject the Applicant's submission.

D. HAS THE SECOND RESPONDENT ESTABLISHED ITS ENTITLEMENT TO THE MAREVA ORDER?

As I have earlier noted, the second Respondent relies upon the affidavit of Mr Crennan, Solicitor, that had been filed in support of the first Respondent's application for a Mareva order.

That affidavit discloses that the Applicant is the owner of a property known as No 34 Gilmour Street, Kelso and that he has entered into a contract for sale (exchanged on 16 February 2000) of that property that, according to a search of the Purchaser's Index in the Land Titles office, that is the only property owned by the Applicant. (I mention that that property has no association with the class 4 proceedings.)

The only asset which I have so far been able to identify as being an asset of sufficient size to be able to satisfy the order for costs …..is that property.

The affidavit annexes a considerable body of correspondence passing between the Solicitors for the Applicant and the Solicitors for the first Respondent concerning (i) the bill of costs that had been submitted to the Applicant and (ii) the first Respondent's notice of intention to seek a Mareva order.

That correspondence includes advice that the Applicant had instructed his Solicitors that he had sufficient funds to satisfy the costs order made against him and that he had other funds deposited on investment with First State Investments.

In my judgment, this evidence falls far short of establishing that the Applicant, in selling his property is taking action designed to defeat his liability for the costs order, by disposing his assets.

The evidence really rises no higher than assertion or suspicion, on the part of Mr Crennan.

In Frigo v Culhaci (1998) NSWSC 393 (unreported - 17 July 1998), the NSW Court of Appeal stated:

A plaintiff must establish, by evidence and not assertion, that there is a real danger that, by reason of the defendant absconding or removing assets out of the jurisdiction or disposing of assets within the jurisdiction, the plaintiff will not be able to have the judgment satisfied if successful in the proceedings.

In my judgment, the second Respondent's evidence does not establish any relevant real danger associated with the Applicant's pending sale of his property in Kelso.

The second Respondent also relies upon the absence of evidence from the Applicant concerning his financial means.

However, the absence of evidence is not surprising, in view of the fact that the second Respondent's evidence is mere assertion or suspicion, and the fact that the second Respondent's Notice of Motion was filed on 10 March 2000 and made returnable on 13 March 2000.

In so concluding that the second Respondent's evidence is patently deficient, it is to be recalled that a Mareva order is "not a species of anticipatory execution": Jackson at 619 per Wilson and Dawson JJ.

Accordingly, I uphold the Applicant's submission that the second Respondent has not established its entitlement to the Mareva order it seeks. On this ground alone, the second Respondent's Notice of Motion must be dismissed.

In view of my conclusion that the Notice of Motion must be dismissed because the second Respondent has not established any action on the part of the Applicant designed to dispose of his assets in order to defeat enforcement of the Court's costs order, it is not necessary to consider this question other than to repeat the caution contained in the majority judgment in Cardile at 669 that a Mareva order "requires a high degree of caution on the part of the Court invited to make an order of that kind". The majority judgment at 669 endorsed "the tenor of what was said in respect of a Mareva order" by the NSW Court of Appeal in Frigo:

a (Mareva order) is a drastic remedy which should not be granted lightly

These salutary cautionary notes are, in my respectful opinion, entirely applicable to this Court's response, in the exercise of its discretionary judgment, to the second Respondent's Notice of Motion seeking a Mareva order in respect of a costs order made by the Court. I was not informed of any decision where a Mareva order had been made in respect of a costs order only.

It would be an unfortunate development in the practice of this Court if parties, having the benefit of a costs, order were to routinely seek a Mareva order in aid of the execution or enforcement of the costs order.

This, of course, is not to say that the discretion would not be exercised in an appropriate case.

It has not been necessary to comment on the form of Mareva order sought. However, the effect of the order claimed in par 3 of the Notice of Motion is objectionable on the ground that it seeks to substitute the Mareva order as the means of execution or enforcement.

For all the foregoing reasons, the second Respondent's Notice of Motion is dismissed with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

45. These salutary cautionary notes are, in my respectful opinion, entirely applicable to this Court's response, in the exercise of its discretionary judgment, to the second Respondent's Notice of Motion seeking a Mareva order in respect of a costs order made by the Court. I was not informed of any decision where a Mareva order had been made in respect of a costs order only.

46. It would be an unfortunate development in the practice of this Court if parties, having the benefit of a costs, order were to routinely seek a Mareva order in aid of the execution or enforcement of the costs order.

47. This, of course, is not to say that the discretion would not be exercised in an appropriate case.

48. It has not been necessary to comment on the form of Mareva order sought. However, the effect of the order claimed in par 3 of the Notice of Motion is objectionable on the ground that it seeks to substitute the Mareva order as the means of execution or enforcement.

49. For all the foregoing reasons, the second Respondent's Notice of Motion is dismissed with costs.

Environment Court Act 1979

CITATION : Weal v Bathurst City Council and Anor [2000] NSWLEC 51 APPLICANT: Weal PARTIES : RESPONDENT: Bathurst City Council and Anor FILE NUMBER(S) : 40179 of 1998 CORAM: Bignold J KEY ISSUES: Practice & Procedure :- Power of Court to make "Mareva" order post judgment in aid of enforcement of costs order LEGISLATION CITED: Land and Environment Court Act 1979 s 23 Jackson v Sterling Industries Ltd (1987) 162 CLR 612· Cardile v LED Builders Pty Ltd (1999) 73 ALJR 657; CASES CITED: Pelechowski v Registrar Court of Appeal (1999) 73 ALJR 687; Farrell v Dayban Pty Ltd (1989) 69 LGRA 415; Frigo v Culhaci (1998) NSWSC 393 (17 July 1998) DATES OF HEARING: 13/03/00 DATE OF JUDGMENT: 03/15/2000

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