Wentworth v Rogers [2003] NSWSC 474 | Case summary

The property referred to in (a) and (c) has, so I was told, already been the subject of unsuccessful action by the Sheriff. In my view neither the property in (a) nor in (c) is properly the subject of seizure by the Sheriff in any event. 3 The application to set aside is made by the judgment creditor, Ms Wentworth, who appears in person. The application is supported by Ms Wentworth's affidavit sworn 11 April 2003. In that affidavit she deposes that in No 8 of 1986 a certificate of costs in her favour was issued on 29 October 2001 and that the total amount owing to her in respect of those costs was as at 11 April 2003 $51,033.44. She further deposes that in No 19228 of 1982 the "date of taking effect of the judgment" is 9 November 1998 and that the total amount owing to her in respect of that judgment was at 11 April 2003 $175,475.93. The sum total she alleges to be owing in respect of both proceedings and the two writs is $226,509.37. 4 Ms Wentworth also deposes that she is entitled to enforce a judgment for costs against the respondent in her favour in a third matter, No CA40402 of 1994, in which the costs certified in her favour are stated to be $16,465.10. The date of certificate is not indicated. No writ has issued to enforce that judgment. The total claim in respect of all three proceedings as at 11 April 2003 is stated to be $242,974.47. 5 There being no evidence to the contrary, I was satisfied upon the reading of Ms Wentworth's affidavit during the hearing of the application that Ms Wentworth had shown a prima facie case of her entitlement to enforce the judgments in her favour and to do so by issuing writs of execution addressed to the Sheriff to levy on the property of the respondent. I indicated that, such prima facie case having been established, and the order of Shaw J having been made ex parte, the onus was on the respondent to support the continuation of the order: Part 40 r 9. 6 Mr Rogers appeared before Shaw J on his own behalf. Before me he was represented by Mr Phillip Beazley, a legal practitioner who holds a certificate to practice as barrister and solicitor. I shall say something about that representation in a moment. The evidentiary material to support the stay is contained in an affidavit sworn by Mr Rogers on 5 April 2003. In it he records some of the history of litigation between the parties. Amongst other things he deposes that in No 19228 of 1982, various costs certificates in his favour entitle him to payment by Ms Wentworth of $172,385. He deposes also that "there are currently consent orders that I will not execute my judgments for consent orders." It appears to be common ground that Mr Rogers has consented to an order or orders that at least for the time being he will not enforce the costs certificates in his favour. 7 With reference to the real property referred to in the writs as Temata, it is described by the respondent in his affidavit as Te Mata and as the land in folio identifier 71/615640. However apart from the above much of the material in the affidavit is stated in terms so general or so oblique as to make it unhelpful if not inadmissible. The respondent's denial of any equity in the property, his understanding that existing in costs orders in his favour might be affected by any costs order to be made in a subsequent trial and his prediction of the effect of execution of the writs on the (then) prospective judgment in No 11094 of 1995 are not supported by evidence of fact. 8 Before the completion of the hearing before me Howie J handed down judgment in No 11094 of 1995, those proceedings being a claim by Ms Wentworth against Mr Rogers and Mrs Rogers to set aside certain transactions entered into between Mr and Mrs Rogers with respect to the properly Te Mata. His Honour refused to grant the relief sought or to disturb the transactions in any way. Without canvassing the whole of the judgment it is relevant to observe that it proceeded on findings that the property is the land in Lot 71 deposited plan 615640, that the title is held by Mr Rogers and Mrs Rogers as tenants in common in equal shares, that the whole of the property is subject to a mortgage in favour of the Australia and New Zealand Banking Group Limited (which secures repayment of a debt of $1,317 000 due to the Legal Aid Commission) and that the interest of Mr Rogers is also subject to a mortgage to Mrs Rogers which secures repayment of a loan by her to Mr Rogers of $130,000 for payment of other legal fees and expenses. 9 Howie J observed at par 340 that Mr Rogers considered that he relinquished his one share in the property to Mrs Rogers in the transactions which included the mortgage but in that respect, as his Honour found, Mr Rogers was in error. Mr Rogers maintains his interest in his one half share subject to the encumbrances mentioned. Howie J also found that the property remained the family home, and that Mr Rogers is entitled to enjoy occupation. 10 On the material before me I conclude that there is a prima facie right on the part of Ms Wentworth to proceed with execution of each of the two writs for the realisation of her entitlement to a total of $226,509.37 together with interest from 11 April 203. She is also entitled to payment, but at this stage not execution, for $1645.10 in CA 4042 of 1994. On the other hand there is a right on the part of Mr Rogers to payment of $172,385 in respect of various costs certificates in his favour but that right is unenforceable by virtue of various orders which were made, apparently, by consent. Further there is an entitlement on the part of Mr Rogers to his costs in proceedings No 11094 of 1995. Lastly there is an outstanding claim by him against Ms Wentworth for damages for malicious prosecution, which was initially a cross-claim in the action for damages by her in which she was ultimately successful. 11 Ms Wentworth submits that there is no right of set off of amounts due by way of judgment debts, at least when those judgment debts are subject to execution, and that there is no power in the Court to stay execution on the ground that the judgment debtor issuing execution is the judgment creditor in other proceedings. No authority was cited which supports this submission. On the contrary it is clearly within the jurisdiction of the Court to control its own processes in order to avoid injustice. If a judgment debtor against whose property execution is to take place is entitled in respect of separate proceedings to payment by the judgment creditor of a sum or sums in total greater than the indebtedness of the judgment creditor it may well be unjust that execution should proceed. That however is not the case at the present time in the totality of the proceedings between the parties. All that is established on the probabilities is that as far as presently enforceable orders are concerned Ms Wentworth is entitled to more from Mr Rogers than he is entitled to from her. Whether that position will be substantially changed by quantification of Mr Rogers' entitlement to costs in proceedings No 11094 of 1995 or by his claim for damages for malicious prosecution is something that has not been established on the probabilities. 12 However in considering whether the discretion should be exercised to continue the stay, regard is to be had to the nature of the interest against which execution is sought and to the likely outcome if execution proceeds. The present value of the land and developments on it free of encumbrances is not the subject of evidence. There is no evidence which quantifies the likely sale price of Mr Rogers' half share, taking into account the burden of the two mortgages. There is a real question whether a purchaser could be found. 13 Howie J noted in his judgment (par 131) that Lot 72 of Te Mata was sold in November 2001 for $120.000, and that the net proceeds of $115,891.19 had been retained by the court pending resolution of the proceedings before his Honour. 14 No order has yet been made, or, as far as I am aware, applied for. Unlike Mr Rogers' interest in the property Te Mata, the money in court provides an identifiable source for satisfaction of the judgment debts for which Ms Wentworth has issued execution. The money in court is not to be taken by the Sheriff in levy of property, as has been recognised, but in my view provides a reason why Ms Wentworth should not be permitted as events stand to execute against Mr Rogers' interest in Te Mata. 15 Ms Wentworth objected to Mr Beazley appearing on Mr Rogers' behalf at the hearing before me. There is merit in the objection. It arose in the following way, as I understand the copious material put before me and from what I have been able to glean from matters of record. Mr Rogers does not have a solicitor on the record acting on his behalf and appears, in the general sense, on his own behalf. He is required to have a notice of address for service within 3 kilometres of the General Post Office, Sydney: Part 19 r 6. He has given the office of Beazley Singleton Lawyers at 185 Elizabeth Street, Sydney as his address for service. Mr Beazley is the principal of that firm. He has been admitted to practise as a legal practitioner. He holds a practising certificate as a solicitor and barrister. He does not hold a practising certificate as a barrister. 16 Mr Beazley submitted that as a solicitor and barrister he had a right to appear in court as an advocate in the present application and that his client had a right to be so represented by him. Alternatively he submitted that he had a right to appear as a barrister on the direct instructions of the client without the intervention of a solicitor. 17 The latter submission is clearly untenable. Despite the assignment of the title "legal practitioners" to persons admitted and enrolled under s 4 of the Legal Profession Act 1987, the scheme established recognises two branches of the legal profession and prevents a practitioner from practising in both branches of the profession at the same time. Section 26 requires an election whether to practise as a barrister or as a solicitor and barrister. Section 38D prohibits a legal practitioner from holding a current practising certificate as barrister and a current practising certificate as a solicitor and barrister at the same time. Section 25(2) prohibits a practitioner holding himself or herself out as a barrister without being the holder of a current practising certificate as a barrister and s 25(4) makes it professional misconduct to do so. 18 In general terms a legal practitioner has full right of audience on the courts of the State. Normally, the right is subject to acting on the instructions of a party. The Rules establish for the Supreme Court a regime whereby a person may appear to prosecute or defend proceeding either in person or through a solicitor. Where a person acting for himself or herself appoints a solicitor, notice of the appointment must be filed and served: Part 66 r 5. The appointment is not effective until the notice has been filed and served: Part 66 r 8. Thereafter anything required or authorised to be done by the party may be done by the solicitor: Part 66 r 1. When a solicitor ceases to act for a party notice must be filed and served: Part 66 r 7. Generally a solicitor who is a representative of a party in proceedings in the court incurs certain responsibilities, some of which are spelt out in Part 66 of the Rules. Part 66 does not apply to barristers. In giving the address of Mr Beazley's firm as his address for service Mr Rogers has not entered an appearance through a solicitor or given notice of appointment of a solicitor. There has been no indication that he wishes Mr Beazley to act for him as solicitor except to the limited extent that Mr Beazley says that Mr Rogers wants him to appear in court to resist the present applications by Ms Wentworth. No ground has been put forward for dispensing with compliance with the Rules. Mr Beazley's right of audience is not effective until there has been compliance. 19 The Court record suggests that from time to time various legal practitioners have been heard on Mr Rogers' behalf without a notice of appearance by a solicitor having been filed, but it is not clear whether they have appeared by leave. It is likely that the question has been overlooked, having regard to the many other issues raised at most if not all stages of the proceedings. 20 However in the circumstances, bearing in mind in particular, that no evidence was to be called, and that Mr Rogers would have to come from far north Queensland if he were to represent himself at the hearing, leave was granted to Mr Beazley to appear on Mr Rogers' behalf such leave being restricted to the hearing itself. If Mr Rogers wishes to cease acting for himself and to appoint a solicitor to act on his behalf he must file and serve notice according to the rules. 21 The order is that the application for removal of the stay is dismissed, save that the stay be enforceable until further order of the Court. Liberty to both parties to apply following the decision of the Court as to the disposal of monies paid into court in proceedings No 11094 of 1995. 22 I am of the tentative view that the parties should bear their respective costs of these applications. However I shall hear them if they wish. **********

Wentworth v Rogers

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Judgment (8 paragraphs)

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