Wentworth v Rogers & Anor [2002] NSWSC 674 | Case summary

JUDGMENT ON APPLICATION FOR INTEREST ON COSTS NO. 2 1 His Honour: The applicant, Ms Wentworth, seeks interest on costs awarded to her by the Court of Appeal when allowing an appeal brought by the applicant against a judgment made in favour of the respondent in December 1985. A similar application to the present was brought by the applicant in respect of an order for costs made in the applicant's favour against the respondent by Sully J. in 1994. I have dismissed that application, see Wentworth v Rogers (Application for Interest on Costs No 1) [2002] NSWSC 651. In that judgment I set out what I consider to be the relevant law and principles to be applied in determining such an application as the present. I do not intend to repeat them here but they have been applied by me in the present application. In that judgment I have also set out the circumstances in which I heard that application. The present application was heard at the same time and under the same circumstances. 2 There is a long and somewhat complicated history of proceedings between the parties in this Court. It is unnecessary to set it out in detail for the purposes of this judgment. The successful appeal by the applicant, from which the instant costs order arose, related to an action brought by the respondent for damages occasioned by, what was alleged to be, the malicious prosecution of him by the applicant. A jury determined those proceedings in favour of the respondent. However, the Court of Appeal set aside the judgment and orders entered by Maxwell J as a consequence of the jury's verdict. The judgment of the Court of Appeal was handed down on 6 March 1987 and on that date the respondent was ordered to pay the applicant's costs of the appeal. The claim, which was the subject of the appeal, has not yet been reheard. 3 The applicant did nothing to enforce the order for the costs of the appeal until very recently. It was not until 29 October 2001 that a certificate of assessment issued in respect of the order. The applicant's costs were assessed at $45,001.99. A judgment for that amount was entered by this Court on 31 October 2001 and took effect from the day. 4 During the period between the making of the costs order and the plaintiff making application to have the costs assessed, there was continuing litigation involving the applicant and the respondent. It is relevant to note that those proceedings have generally been conducted with vigour by both parties and most, if not all, steps that might have resulted in some tactical advantage for one or the other has been taken by them. From my experience litigation between the parties has been accompanied by considerable acrimony. 5 In the usual case, interest on unpaid money that is the subject of a judgment or order of this Court runs from the date that the judgment or order takes effect. However, Pt 40 r 3 of the Supreme Court Rules provides: Date of effect 3(1) A judgment shall take effect - (a) where it is given in Court - as of the date on which it is given; (b) otherwise -- as of the date of entry. (2)………….. (3) Subject to subrule (1) an order shall take effect as of the date on which it is made. (4) Notwithstanding subrules (1) and (3), where an order of the court directs the payment of costs and the costs are, pursuant to any Act or the rules, to be taxed, the order shall take effect as of the date of the certificate of taxation. (5) Notwithstanding subrules (1), (3) and (4), the Court may order that a judgment or order take effect as of the date earlier or later than the date fixed by those subrules.

The terms "taxed" and "certificate of taxation" are now to be read as "assessed" and "certificate of assessment", see clause 45 of Schedule 8 of Legal Profession Act 1987. 6 The applicant is entitled to interest on costs unpaid by the respondent from the date of the certificate of assessment of costs: in the present case from 29 October 2001. However, the applicant seeks to have an order that interest run on the assessed amount from an earlier date, being 6 March 1987, the date when the costs order was made. 7 In Wentworth v Wentworth (NSWCA, Handley JA, 4 December 1998 unreported) the applicant had sought an assessment of the costs within twelve months of the order, but there had been a delay in the assessment process itself of over 6 years. In those circumstances Handley JA was prepared to backdate the date of the Certificate of Assessment to a date when an assessment of the costs might reasonably have been made. This was notwithstanding that his Honour did not know what was the state of accounts between the applicant and her legal representatives at any time between the order for payment of costs and the application for an order for interest. 8 It is not apparent to me why it was that the applicant waited so long before seeking to have these costs taxed or, more recently, assessed. I do not even know precisely when it was that an application for assessment of the costs was made. The evidence upon which the application is based is largely contained in the affidavit by the applicant in support of the Notice of Motion. In that affidavit the applicant states that she waited until after the verdict in her favour on the trial of her claim for damages before Sully J before she sought an assessment of these costs. The affidavit does not explain why the applicant took this course. 9 In her affidavit the applicant states that she was aware that the respondent would attempt to interrupt the assessment process, that he would employ "any means to avoid paying me my costs as ordered", and that the actions of the respondent and his legal advisers "have been such as to make it impossible for me to conduct litigation in an orderly fashion, to have legal representation, which he has by his actions effectively denied me and his actions have caused me extreme stress anxiety and harm". She claims that the respondent has "utilised all means at all times to make it impossible for me to properly deal with my claims". She asserts, "because of the actions of the respondent I have not been able to prepare and have various bills of costs assessed". The affidavit does not seek to particularise these general assertions. 10 I am far from persuaded that the delay by the applicant in seeking an assessment of these costs was a result of any conduct, or misconduct, on the part of the respondent or his legal representatives. I do not understand how any of the matters raised by the applicant justify, excuse or even adequately explain her delay in, at the very least, lodging an application to have the costs taxed or assessed. Her delay becomes more difficult to understand in light of the statement in her affidavit that she had paid her legal representatives by December 1986. In the circumstances of the present case, I do not believe that the delay in the assessment of the costs itself should result in interest being held to run from a date earlier than would normally be the case. In my opinion it would be oppressive to order that interest run from the date the costs order was made given, the extensive and, what I believe to be, unjustified delay in proceeding to assessment. I do not believe that I should make an order under Pt 40 r 3(5). 11 Section 95(4) of the Supreme Court Act 1970 provides: "(4) If an order is made for the payment of costs, the Court may order that interest is to be paid on the amount so ordered, at the prescribed rate referred to in subsection (1), from the date or dates when the amount in respect of costs was duly paid." 12 As I have already noted that in her affidavit the applicant has made the general statement that she had paid all the costs of her legal representatives "by about December 1986". I have a discretion to order that interest be paid from the end of December 1986. But I do not believe that I should do so. For whatever reason, the applicant simply chose not to take steps to obtain an assessment of those costs for well over a decade. 13 The delay in the applicant seeking an assessment has been the basis of attempts made by the respondent to set aside the assessment. I was assured by him and the plaintiff that there are no current proceedings to set aside the certificate of assessment. Whether the respondent might have open to him some mechanism to challenge the assessment or the judgment which has been entered as a result seems to me to be irrelevant to the exercise of the discretion which I have under s 95(4). Similarly the fact that the respondent might have unsatisfied orders for costs against the applicant does not seem to me to be a factor to which I should have any regard. 14 But after considering the material in the applicant's affidavit and her oral submissions, I am not persuaded that I should make any order extending the period during which interest on the costs ordered by the Court of Appeal to be paid to the applicant should run. 15 The application is refused I make no order as the costs of the Notice of Motion. **********

Wentworth v Rogers & Anor

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Cases Cited (1)