Adler v Singer

[2009] NSWSC 428

CITATION:	Adler v Singer [2009] NSWSC 428
HEARING DATE(S):	2 April 2009
JURISDICTION:	Equity Division Expedition List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	2 April 2009
DECISION:	No order as to costs.
CATCHWORDS:	COSTS - Where defendant had not complied with order – where plaintiff inappropriately re-listed matter to threaten defendant without making contempt or other application - where defendant’s conduct materially contributed to unnecessary application
CATEGORY:	Procedural and other rulings
PARTIES:	Ethel Adler (plaintiff) David Singer (first defendant) Simon Singer (second defendant)
FILE NUMBER(S):	SC 1548/09
COUNSEL:	Mr D Cook Mr M Wilmott SC
SOLICITORS:	Makinson & D'Apice (plaintiff) Bamford Associates (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Thursday 2 April 2009

1548/09 Ethel Adler v David Singer & anor

JUDGMENT (ex tempore)

1 HIS HONOUR: On 27 March 2009, I made an order in terms of paragraph 1 of the interim relief sought in the notice of motion of 27 March 2009, namely, that the defendants take all necessary steps forthwith to cause to be transferred the entire funds held in a nominated bank account to the trust account of the plaintiff’s solicitors. On 30 March 2009, the defendants’ solicitors sent a facsimile to the plaintiff’s solicitors referring to that order and asking, “Please enter his Honour’s order and provide a copy so that our client can comply with it promptly.” The plaintiff’s solicitors responded by facsimile the same day, pointing out in my view correctly­ ­ that there was no reason why the order of 27 March had to be entered before the funds could be transferred, and that the defendant was present in court when the order was made. The letter concluded, “Would you please ensure that your clients transfer the funds without further delay. If your clients fail to do so we shall relist the matters and bring your client’s contempt to the attention of the court.” That threat is redolent of what is often seen in the inappropriate practice of threatening to bring parties before the court to berate them and draw their behaviour to the attention of the court, without making any particular application.

2 On 1 April the plaintiff’s solicitors sent a further letter, observing that they had not heard further about whether the funds had been transferred and asserting, “In the event that we do not receive written confirmation that the funds standing to the credit of the relevant account have been transferred to our firm’s trust account by 5pm today then we will be approaching the court and seeking an order for contempt against your clients.” At least this time the letter foreshadowed an application for an order whatever an “order for contempt” might be but it would have been practically impossible to have a contempt motion brought before the court at that notice unless an abridgement of time for service and dispensation with various rules were obtained and no such application was made.

3 At 1.40pm on 1 April, the defendants’ solicitors wrote to the plaintiff’s solicitors, indicating that the solicitor responsible had looked at the matter and advised their client to effect the payment without delay, and would provide confirmation once the funds were transmitted. The letter concluded, “Please arrange for the court to be notified of this and when we notify you of transmission of funds of that fact.”

4 At 3.55pm on 1 April, the defendants’ solicitors wrote again to the plaintiff’s solicitors, referring to a telephone conversation said to have occurred a few minutes earlier and recording that their clients had given instructions to their bank to effect the remittance of funds, and were awaiting confirmation that that transaction had taken place within the timeframe set out in the letter from the plaintiff’s solicitors that morning, but that the matter had already unnecessarily been relisted for this morning, 2 April. The letter suggested that my associate be contacted and notified that there was no need for the court’s time to be consumed on this aspect at this time.

5 This morning, as the funds had been remitted, no substantive order was sought, but each party sought costs. Counsel for the plaintiff indicated that had the matter proceeded today and the payment not been made, then a direction would have been sought that the order be entered forthwith. However, that did not reflect the history of the correspondence and hardly required a formal relisting of the matter.

6 It is quite clear from the correspondence that the purpose of relisting the matter today was to threaten the defendants with having their non-compliance drawn to the attention of the court, without making an application to have them dealt with for contempt. At the same time, it is quite clear the defendants adopted an entirely wrong view of the effect of the necessity for the order to be entered, and in that way materially contributed to the plaintiff’s misconceived decision to relist the matter.

7 In my view, both parties are at fault, neither should have their costs and there will be no order as to the costs of today, to the intent that each party bear their own costs.

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