Wentworth v Rogers [2003] NSWSC 472 | Case summary

JUDGMENT 1 HIS HONOUR: There are two applications before the court by which the applicant, Ms Wentworth, seeks review of a decision or decisions of Acting Registrar Whitehead (the Registrar) handed down on 3 March 2003. 2 Ms Wentworth sued the first respondent, Mr Rogers, for damages for assault in the Common Law Division (No 17228 of 1982). Mr Rogers obtained a verdict in his favour on 20 December 1985. Ms Wentworth appealed to the Court of Appeal (No 8 of 1986). On 6 March 1987 the appeal was allowed and the Court of Appeal ordered a re-trial. Mr Rogers was ordered to pay Ms Wentworth's costs of the appeal, the costs of the first trial to abide the result of the second trial. The second trial resulted in judgment in favour of Ms Wentworth. Mr Rogers was ordered to pay $2,680 by way of damages and one half of Ms Wentworth's costs. The costs of the trials and of the appeal were assessed or taxed and certificates of costs issued in respect of each of the two proceedings, that is to say, the two trials in the Common Law Division on the one hand, and the appeal in the Court of Appeal on the other. Relying partly on these certificates of costs, Ms Wentworth applied under Part 36 r 3 for leave to file and serve a garnishment notice in respect of each of the two proceedings. The garnishee was named as St George Bank Ltd and the debt sought to be attached was described thus - "Monies held in the account for the Estate of the Late Laura Helen Cynthia Rogers, savings account No 3822, as sole beneficiary in respect of the amount so held." 3 A registrar dealt with the application ex parte and in chambers in accordance with the Rules and practice and granted leave on 10 February 2003 for the filing and serving on St George Bank Limited (St George Bank) of two garnishment notices attaching the debt described in them. Part 46 r 3(1) provides that a garnishment notice is a notice of attachment of debts due or accruing to the judgment debtor from the garnishee and also a notice of motion for payment. The notices of motion were returnable on 24 February 2003. 4 Ms Wentworth caused St George Bank to be served with copies of the garnishment notices. She provided copies of the garnishment notices to Messrs Michael Bray and David Jackson, trustees of the estate of the late Laura Helen Cynthia Rogers, the estate mentioned in the description of the debt referred to above. A hearing took place before the Registrar. Ms Wentworth appeared for herself. St George Bank was represented by a solicitor. It seems that, whilst not denying that it held funds in an account on behalf of the estate, St George Bank denied that it owed a debt to Mr Rogers. Otherwise St George Bank was and it is prepared to abide by any decision of the Court. 5 Ms Wentworth disputed that the trustees had any right or standing to appear at the hearing of the motion for payment or on the application for review. Section 46 r 9 gives the Court power to hear and determine "any question in dispute concerning the liability of the garnishee to pay the debt attached and give such judgment or make such order as the case requires". The garnishee impliedly has the right to be heard on the determination of the dispute. It is not clear whether the right extends to any other person. However Part 46 r 10 allows the Court to hear and determine any claim by any person to any interest in the debt attached. This latter power is I think wide enough to include a claim by a person to an interest in a fund from which the debt, which the notice of garnishment purportedly attaches, is to be paid. The cases cited in Ritchie Supreme Court Practice NSW at 46.10 show that the garnishee is under a duty to acquaint the court with any claim or lien over the alleged debt and that no order for payment will be made if it appears that the money is trust money. Clearly in the present case the nature of the debt and the monies in the account are matters more within the knowledge of the trustees than of their bank. For that reason alone it was within power and appropriate for the Registrar to allow the trustees to appear and dispute that the fund in the bank constituted a debt due or accruing to Mr Rogers. It also appropriate for them to appear on the application for review. 6 The trustees, wrongly, as it is now claimed or conceded on their behalf, assumed that orders for payment were sought against them as if they and not St George Bank were the garnishee. Naming themselves as garnishees they appeared and were granted leave through their counsel to file in court at the hearing before the Registrar notices of motion seeking orders that each of the garnishment notices be revoked or alternatively set aside. In support of their application they relied on an affidavit sworn by one of the trustees, Mr Michael Bray, on 24 February 2003. In that affidavit Mr Bray deposed that the funds in the St George Bank account were subject to a trust established by the provisions of the will of the late Laura Helen Cynthia Rogers, mother of Mr Rogers, and contended that the nature of the trust was such that there was no debt due or accruing to Mr Rogers from the trustees. A copy of the will was annexed to Mr Bray's affidavit. 7 The will contained in paragraph 3 provision for pecuniary legacies as follows:- "(a) to my grand daughter TWINK RILEY the sum of Ten Thousand dollars ($10,000) (b) to my grand daughter ANNA ROGERS the sum of five Thousand Dollars ( $5,000) 8 The will further provided in paragraph 4 for the establishment of a Residuary Trust Estate and the setting up of a fund "(a) to invest the fund as authorised by law or any clause under this Will (b) to pay all or any part of the income and all or part of the capital of the fund to my son Gordon John Rogers at such times my executors in their discretion think fit. (c) my executors may exercise any powers given to them by law or this Will and in addition they during the twenty-one years from my death (if the trust exists so long) accumulate income to the fund so that surface income becomes part of the fund and after twenty-one years from my death apply any surface income among such of my grand children then living. (d) If the said Gordon John Rogers dies before me or during the subsistence of these trusts then those children shall be entitled to share the fund absolutely." 9 It was common ground that at all material times Ms Twink Riley and Ms Anna Rogers were and are the only persons who stood and stand to benefit under clause 4(d) of the will. Accordingly the trustees were are obliged to treat them as residuary beneficiaries of the trust. In that respect the description in the garnishment notices of a debt to Mr Rogers as sole beneficiary is clearly incorrect, as the Registrar recognised. 10 The Registrar found that the fund held by the trustees was subject to a discretionary trust and that the trust was subsisting notwithstanding a submission by Ms Wentworth that Mr Rogers had by his conduct determined the trust. (There were other findings to which some reference will be made.) On those findings the Registrar concluded, correctly, that there was no debt due or accruing to Mr Rogers from the St George Bank. On that conclusion the Registrar was bound to set aside the garnishment notices as they stood insofar as they named St George Bank as the garnishee. With regard to the position of the trustees, the Registrar further concluded that the discretionary nature of the trust was such that it did not give rise to any debt due or accruing to Mr Rogers from the trustees. Accordingly the Registrar made the order or orders setting aside the garnishment notices. 11 The present applications are by way of review under Part 61 r 3 and do not constitute appeals. It may be noted that the Registrar exercised the jurisdiction of a Judge of the Common Law Division and of the Court of Appeal in relation to the respective garnishment notices. There was no objection to that course being followed in a single hearing before the Registrar. The parties did not object to the applications for review proceeding at a single hearing before me. Insofar as the decision for which review is sought relates to a matter of practice and procedure, substantial weight is to be given to the Registrar's decision. To the extent that the decision proceeds on principles of law (in this case the interpretation of a will and the nature of the trust fund established under the will) the need to correct any perceived error of principle should be recognised. Nor should it be overlooked that garnishment proceedings are there to provide an effective means for a litigant to enjoy the fruits of successful litigation. A mistake in the identity of the garnishee should not frustrate a proper attempt to enjoy those fruits. 12 Ms Wentworth submitted in the review, as I understand she submitted before the Registrar, that the terms of the will created an entitlement on the part of Mr Rogers, and a corresponding obligation on the part of the trustees, for the payment of all or part of the income and all or part of the capital of the fund by the trustees to Mr Rogers, which could not be obscured or avoided by the discretion as to when and in what amount they should make such payments or by the absence of any exercise by the trustees of that discretion. 13 However, the submission does not take into account the provision in the will regarding the two residuary beneficiaries. It was put on behalf of the trustees, both to the Registrar and in the application for review, that the relevant obligation of the trustees is to hold the trust fund on the trusts specified in the will giving due consideration from time to time as to whether they ought make an advancement to Mr Rogers, at the same time bearing in mind the interests of the residuary beneficiaries. In my view the submission must be accepted. The trustees have no general obligation to exercise their power of advancement in favour of Mr Rogers. They may not execute that power properly unless and until a weighing up of the interests of all beneficiaries leads them to conclude that a payment by way of advancement to Mr Rogers is appropriate. As the Registrar recognised, they have not concluded that such payment is appropriate, except as about to be mentioned, nor do the circumstances require them to reach such a conclusion. 14 In addition, or in the alternative, Ms Wentworth submitted that a payment by the trustees to one of the residuary beneficiaries, Ms Anna Rogers, of a sum of $5,000 from the fund, amounted in the circumstances to a determination of the trust and that Mr Rogers should be treated as presently entitled to the whole of the income and capital. It is desirable to be more precise about the circumstances, since, according to the submission, the Registrar had misunderstood them. 15 Under cross-examination before the Registrar, Mr Bray stated that $5,000 had been paid out of the fund to Anna Rogers in addition to the sum of $5,000 which she had received by way of legacy under the will. This additional payment brought her, in effect, to the level of the other residuary beneficiary, Twink Riley, who had received a legacy of $10,000. However there was some conflicting evidence about who had made the request or given the instructions to the trustees on which the trustees had based their decision to pay the further $5,000 to Anna Rogers. Some of that evidence was contained in an affidavit sworn by Ms Wentworth on 5 May 2003, which was filed in court over objection. Although it may have been open to the Registrar to so find, the Registrar appears to have stopped short of making a finding that there was a discussion between Mr Rogers and Mr Bray in which Mr Rogers sought to have the payment made on the ground that it was in accordance with his mother's wishes although not reflected in any codicil to the will. Further, the Registrar appears not to have accepted the evidence given by Mr Bray under cross-examination that there was a joint request by Mr Rogers and the residuary legatees. However, the Registrar was in my view correct in holding that the suggested conduct on the part of Mr Rogers, if proved, would not have had the effect of determining the trust. The evidence also falls short, as I think the Registrar indicated, of showing that the trust was a sham and that it was set up in order to allow Mr Rogers to avoid discharging his liabilities to Ms Wentworth. Furthermore, and after taking into account what Ms Wentworth says in her affidavit sworn 5 May 2003, whilst it may be that the payment of $5,000 to Anna Rogers was made in accordance with the expressed wishes of Mr Rogers and in that sense might be said to be for his benefit or even "to his use", that payment could not and did not have the effect of determining the trust thereby entitling Mr Rogers to payment out of the trust fund and thereby also disentitling the residuary beneficiaries to share in the benefits of the fund. 16 I accept, as Ms Wentworth submitted, that a debt "due or accruing" under Part 46 includes an equitable debt as well as a debt at law. It is also true that a debt may be accruing although not presently due for payment: Webb v Stenton (1883) 11 QBD 518. But there was nothing in the trust which meant that Mr Rogers would be entitled necessarily at any time to payment of any part, let alone the whole, of the capital and income of the fund. The trustees were and are obliged to administer the trust having regard to the interest of all beneficiaries. 17 There was and is no debt owing or accruing by the trustees or by the St George Bank to Mr Rogers. The Registrar was correct in making orders to set aside the garnishment notices and there are no grounds for a review of the Registrar's decision. 18 Ms Wentworth also sought at the hearing of the application for review to overturn a ruling by the Registrar during the hearing before him refusing to entertain an application for a charging order or similar relief under the Judgment Creditors Remedies Act 1904. Leave to file a notice of motion for that relief was not sought until the stage of submissions. The Regisrar took the view that an application for such relief was not properly before him and that view was well justified. There is no ground for reviewing the refusal to allow Ms Wentworth leave in that regard. 19 The applications for review are dismissed. I shall hear the parties on costs if they wish to be heard. Otherwise I would order that the unsuccessful applicant for review, Ms Wentworth, is to pay the costs of the successful respondent Mr Rogers both of the review and of the application to the Registrar. I would also order that Ms Wentworth pay the costs of the trustees, both of the review and of the hearing before the Registrar of the motions to set aside the garnishment notices.

Wentworth v Rogers

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