Battenberg v Phillips

[2022] NSWDC 42

District Court

New South Wales

Medium Neutral Citation:

Battenberg v Phillips [2022] NSWDC 42

Hearing dates:

10 February 2022

Date of orders:

10 February 2022

Decision date:

01 March 2022

Jurisdiction:

Civil

Before:

Wilson SC DCJ

Decision:

1 the Plaintiff’s Notice of Motion filed 19 January 2022 is dismissed;

2 the Hearing listed for 17 February 2022 is confirmed with an estimate of 1 day;

3 Plaintiff is to file and serve his written submissions in respect of the appeal on or before 4pm on 16 February 2022;

4 in the event that the appellant is unable to comply with order 3 he has leave to deliver submissions orally on 17 February 2022;

5 the question of costs of the Plaintiff’s Notice of Motion is reserved for the Judge who hears the appeal.

Catchwords:

CIVIL – Practice and Procedure- Application to Vacate Hearing - refused

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56, 58

Category:

Procedural rulings

Parties:

Andrew Battenberg (Plaintiff)
Bruce Keith Phillips (Defendant)
Robyn Ruth Price (Defendant)

Representation:

Mr Battenberg (Self-represented)

Counsel:
Ms Castle (Defendants)

File Number(s):

2021/227906

Publication restriction:

none

Judgment

1. On 10 February 2022 I made the following orders:

1. the Plaintiff’s Notice of Motion filed 19 January 2022 is dismissed;

2. the Hearing listed for 17 February 2022 is confirmed with an estimate of 1 day;

3. Plaintiff is to file and serve his written submissions in respect of the appeal on or before 4pm on 16 February 2022;

4. in the event that the appellant is unable to comply with order 3 he has leave to deliver submissions orally on 17 February 2022;

5. the question of costs of the Plaintiff’s Notice of Motion is reserved for the Judge who hears the appeal.

2. As the matter came before me on 9 February and 10 February 2022 in the course of a busy list, my reasons were reserved and are now provided.

Background to the Proceedings

3. On 10 August 2021, the Plaintiff filed a Summons Commencing Appeal and Summons Seeking Leave to Appeal. Under the heading “Details of Appeal” Plaintiff stated:

“[t]he Plaintiff appeals the decision of the review panel and their failure to extend the time to comply with their directions beyond 25 February 2021 by email of 16 February 2021.”

4. In the orders sought, the appellant asked that leave to appeal be granted and that the matter be referred back to the costs review panel.

5. The basis of the appeal would appear to me upon a cursory examination of the summons to be an alleged denial of procedural fairness in the costs assessment process.

6. The proceedings were listed for a Directions Hearing on 23 September 2021. By orders made in Chambers by Judge Smith SC DCJ that date was vacated and a fresh dated of 7 October 2021 was set. On 7 October 2021, there was no appearance for the Plaintiff due to “technical difficulties”. He was located in the United Kingdom and was unable to dial in using the 1800 number provided by the court. Accordingly, the matter was stood over to 8 October 2021.

7. On 8 October 2021, Mr Russo appeared for the Plaintiff and Ms Castle for the Defendant. the Plaintiff sought an adjournment of a week. Judge Smith SC DCJ made orders as to the service of evidence and submissions and fixed the matter for Hearing on 17 February 2022. The Plaintiff was to file and serve evidence by 29 October 2021 and his submissions of no more than 10 pages by 3 December 2021. The Defendants were to file and serve their evidence by 12 November 2021 and submissions by 17 December 2021. The Plaintiff then had until 29 January 2022 to put any submissions in reply.

8. The matter first came before me on 1 February 2022 following of the filing of the Notice of Motion by the Plaintiff on 19 January 2022. It was necessary, on the Plaintiff’s application, to adjourn the matter as he was unable to connect to the court and could only proceed by way of audio-visual link which was not available to me on that day. The matter was adjourned to 9 February 2022.

9. On 9 February 2022, Mr Battenberg appeared for himself and Ms Castle of counsel for the Defendants.

10. The following evidence was relied upon:

1. Exhibit A- affidavit of Andrew Battenberg affirmed 22 December 2021;

2. Exhibit B- affidavit of Andrew Battenberg affirmed 31 January 2022;

3. Exhibit C- affidavit of Andrew Battenberg affirmed 3 February 2022;

4. Exhibit D Letter from Trowers & Hamlins Solicitors dated 8 February 2022.

5. Exhibit 1- affidavit of Mr Pooley, solicitor for Defendant sworn 24 January 2022;

6. Exhibit 2- affidavit of Mr Pooley, sworn 31 January 2022.

11. The hearing of the Plaintiff’s Notice of Motion commenced before me on 9 February 2022. The principal order sought by the Plaintiff was that:

“The further conduct of the Proceedings be stayed, pending final determination of proceedings number FJ156/21 filed in the United Kingdom.”

12. Due to the time difference between Sydney and London, it was not possible to conclude the hearing of the motion on 9 February 2022 and it was stood over until the next day at which time further submissions were made and the matter was determined.

Background

13. The Defendants are the executors of an estate of the late Blanche Minnie Condan (the deceased) who died 13 December 2016. In an earlier iteration of her Will, she had left a legacy of some $50,000 to Mr Battenberg. However, she executed a new Will in 2016, prior to her death, removing the legacy and leaving her estate to various beneficiaries including her nephew Mr Phillips and her niece Ms Price who were appointed executors and who are the Defendants in these proceedings.

14. The Plaintiff’s action failed before Henry J of the Supreme Court resulting in a costs order against him in favour of the estate. The Plaintiff appealed her Honour’s decision. The appeal was unsuccessful and a further costs order was made against the Plaintiff in favour of the Defendants in the Court of Appeal.

15. Costs were assessed in the usual way in respect of the two costs orders. The Plaintiff applied for a review of both costs determinations. Plaintiff was partially successful in respect of one review application but failed in the other.

16. The Defendants then had the Costs Certificates registered as Judgments in New South Wales and applied for those Certificates as Judgments in the United Kingdom.

17. Ms Castle informed the court (10 February 2022 T1.28-37) that the Application for Registration in the United Kingdom was filed in August and the Defendants only became aware of these appeal proceedings in September 2021. Apparently, the original Summons filed 10 August 2021 was not served upon the Defendants. They were unaware of the appeal until the filing of the Amended Summons on 19 September 2021. I note the Amended Summons was rejected by the court as it was unsigned and not dated.

18. As noted above, the matter was listed originally for directions on 23 September 2021. A notice of appearance was filed for the Defendants on 13 September 2021.

19. As at September 2021, on foot in the United Kingdom there was an Application for Registration of the Certificate as Judgments and in New South Wales, there was a Summons seeking leave to appeal by the Plaintiff against the determinations of the review panel.

The Appellant’s Evidence in Support of the Stay

20. In his first affidavit (Exhibit A) the Plaintiff stated that he commenced proceedings in the United Kingdom in respect of the claim against the estate:

“[R]elating to the estate’s contractual indemnity to me, in respect of all costs of any proceedings”

21. He referred to proceedings FJ156/21 Queens Bench Division High Court of Justice. Annexure A to Exhibit A was a letter by the deceased seemingly created in 2006 which made allowance for the Plaintiff in the her Will and also provided “should any challenge be made Andrew Battenberg is to be indemnified by my estate to enforce his rights contained therein”. That document was created 10 years prior to the last Will of the deceased.

22. Annexure B to Exhibit A identifies the Defendants (the executors of the estate) as the claimants and the Plaintiff as the Defendant in respect of proceedings commenced in the High Court of Justice, Queens Bench decision. The document is dated 10 December 2021 and sealed 14 December 2021. It records the facts that the claimants (the estate) were seeking registration of the Judgments made in the Supreme Court of New South Wales and also stated:

“The Defendant having indicated an intention to issue a claim in the Business and Property Courts, Bristol District Registry”

23. The orders by the court also provided for a stay of the registration proceedings and permitted the parties to agree to a further stay of the Registration Application of up to 4 months and to notify the court of the same. Any stay in excess of 4 months required an order of the court.

24. Contrary to what was stated by Mr Battenberg in paragraph 2 of Exhibit A, that he had “commenced proceedings in the United Kingdom” all that had occurred is that he had provided an indication of an intention to issue a claim.

25. The Plaintiff also relied upon an affidavit affirmed 31 January 2022 (Exhibit B). This affidavit very much takes the form of submissions in response to the affidavit of Mr Pooley. In paragraph 8, the Plaintiff stated:

“[I]t is inappropriate for the NSW District Court to determine any questions which are the domain of the English Courts”

26. Leaving to one side whether that statement in principle is correct, I observe that the only matter before the English court was the Defendants’ Application for Registration of Judgment.

27. In paragraph 12, the Plaintiff again speaks of having commenced proceedings in the English jurisdiction in order to claim a right under contract as a third party. There is no evidence that any such proceedings have been commenced. The highest the Plaintiff’s argument could be put is that a Letter of Claim had been served on the solicitors for the Defendants.

28. The Letter of Claim was dated 12 January 2022 and is annexure A to Exhibit B. It refers to New South Wales proceedings in which the Plaintiff sought to assert that the deceased lacked capacity to enter into her 2016 Will, such claim being unsuccessful resulting in the decision of Henry J.

29. In paragraph 1.5 of annexure A, the solicitors state that in March 2018 the Plaintiff issued proceedings in the United Kingdom against the executors seeking a declaration that the signature on the 2006 agreement was genuine. It would appear that in December of that year, the Plaintiff abandoned those proceedings with the filing of a Notice of Discontinuance.

30. In paragraph 1.6 of annexure A, the English solicitor for the Plaintiff referred to these proceedings noting their Australian counterpart’s confidence in their client’s prospects of success in the appeal. They also expressed the Plaintiff’s shock at being served with the Application for Registered Judgment in the High Court in England and Wales but noted that those proceedings were currently stayed. In paragraph 2 of annexure A, the solicitor set out their clients claim under the Contracts (Rights of Third Parties) Act 1999 (UK).

31. Finally, in the letter from the Plaintiff’s English solicitor to the Defendants English solicitor the former asks for a stay of the registration application until 14 April 2022.

32. The third affidavit of Mr Battenberg (Exhibit C) does not materially advance his position in respect of the application for a stay in New South Wales. The document mostly contains statements which are submissions.

33. Mr Battenberg also relied upon a letter form Trowers & Hamlins (his English solicitors), dated 8 February 2022 which refers to the transfer of audio-recordings and again the proposition of an extension to stay the Registration Proceedings until 31 March 2022 “to enable the parties to engage in ADR”.

34. Prior to the resumption of the hearing of the Notice of Motion on 10 February 2022, the Plaintiff emailed a letter from Trowers & Hamlins dated 9 February 2022 (Exhibit E). My reading of that letter confirmed that there were no proceedings on foot in the United Kingdom other than the application for registration of Judgment by the Defendants.

The Respondent’s Evidence

35. Mr Pooley’s Affidavit sworn 25 January 2022 (Exhibit 1) indicates that at the directions hearing in October 2021 Mr Russo who appeared for the Plaintiff indicated that the Plaintiff wanted a general stay of these proceedings as there were “parallel proceedings on foot in the United Kingdom”. The presiding judge indicated that the Plaintiff would need to file a Notice of Motion and affidavit evidence for such an application to be considered. No such application was filed until 19 January 2022.

36. Mr Pooley confirmed that the Plaintiff served his evidence in respect of the appeal by email on 29 October 2021 in accordance with the directions made by the court.

37. The Defendants then served their evidence. On the day that any evidence in reply was due from the Plaintiff, the solicitor for the Defendants received an email requesting “agreement on the stay of these proceedings”. That same day Mr Pooley sent an email rejecting the request for the stay.

38. On 17 December 2021 Mr Pooley emailed to the Plaintiff the Defendants submissions. In response the Plaintiff sent an email with the same date stating he had not served his submissions “as we are supposed to be staying the matter”. The basis of that understanding on behalf of the Plaintiff was unclear.

39. In paragraph 17 of his affidavit Mr Pooley stated:

“The Plaintiff has requested a stay of proceedings on the basis that he will be issuing legal proceedings against the Defendants in the United Kingdom in respect of an “irrevocable agreement” that he claims the deceased entered into with her sister Ailsa Lee in September 2006. This claim, if it is pursued is simply repeating a claim made by the Plaintiff in the Supreme Court of NSW contested probate proceedings on 26 July 2017 and is also the subject of proceedings issued by the Plaintiff in the High Court of Justice in England and Wales in March 2018. Further the Plaintiff agreed by way of orders made by Justice Lindsay in the Supreme Court of NSW on 10 December 2018 to abandon all claims against the deceased’s estate in any jurisdiction in respect of this “irrevocable agreement” and for each of these claims to be dismissed.”

40. Mr Pooley was not required for cross-examination and therefore not challenged as to that evidence.

41. In a further affidavit of Mr Pooley sworn 31 January 2022 (Exhibit 2) he makes it clear that at no time did the Defendants ever agree to stay these proceedings. The only stay was in respect of the Registration Application in the United Kingdom.

Submissions

42. The submissions made by Mr Battenberg were somewhat repetitive and circular. They were based on the statement that parallel proceedings had been commenced by him in the United Kingdom. That was not the case. He referred to “two parallel proceedings” (T11.22) in referencing the New South Wales appeal from the costs review panel and the Defendant’s Application for Registration of Judgment on the United Kingdom. The proceedings are quite distinct and separate. Mr Battenberg did not accept that proposition.

43. He submitted that the Defendants had “jumped the gun” (T12.19) by commencing the registration proceedings in the United Kingdom prior to a determination of the appeal in this court. The explanation for that is that at the time of the commencement of the United Kingdom registration proceedings, the Defendants were not aware that the Plaintiff had filed a Summons seeking to challenge the cost review panels determination (see:10 February 2022 T1).

44. Plainly, the registration of a judgment ought to await the determination of the appeal. If the result of the appeal is to reduce the costs payable by the Plaintiff then the judgment must be taken out in a different amount. It seems to be that the appropriate course was for the parties to agree to stay the registration proceedings for a period of 4 months to allow the Hearing of the appeal proceedings in this court on 17 February 2022. Whist the Defendants were agreeable to that approach, the Plaintiff considered it unsatisfactory.

45. When the matter came back before me the next day on 10 February 2022, I indicated that I did not propose to vacate the hearing date of 17 February 2022 particularly in light of the evidence in Exhibit E which confirmed that there were not proceedings on foot brought by the Plaintiff against the Defendants in the United Kingdom.

Determination

46. The Plaintiff application for a stay was refused as it lacked merit. As already stated, the Plaintiff based his argument on the argument entirely on there being two parallel proceedings. That is a misrepresentation of the fact. The proceedings in the United Kingdom are no more than an application by the Defendants to register a judgment so as to have it enforced in that jurisdiction. The application was made at a time when the Defendants were unaware of the Plaintiff’s appeal to this court.

47. It seems to me that the best approach is to have the appeal determined so the costs are known. It would be fruitless to stall appeal proceedings in order for the enforcement proceedings to continue in circumstances where if the Plaintiff is successful on appeal, the sum to be enforced would be reduced.

48. In considering the Plaintiff’s application for a stay, I am mindful of the Standard Orders for Hearing attached to District Court Civil Practice Note 1 which require applications to stay or to vacate hearings to demonstrate “very good reasons” why the courts discretion should be exercised favourably.

49. The Plaintiff has failed to satisfy that threshold.

50. In exercising the courts discretion to refuse the application, the overriding purpose in section 56 of the Civil Procedure Act (CPA) to facilitate the just, quick and cheap resolution of the real issues in the proceedings is a key consideration.

51. The issue in these proceedings is whether leave ought to be granted to the Plaintiff to appeal the determination of the review panel, and if leave is granted, if the review panel’s determination is fair and reasonable

52. Parties to civil proceeding are under a duty to assist the court to further the overriding purpose “and, to that effect, to participate in the processes of the court and to comply with the directions and orders of the court” (section 56(3) CPA). In my opinion, the Plaintiff’s application and submissions made in support of it had the effect of frustrating the processes of the court and wasting court time.

53. Further, in considering whether to grant a stay in proceedings the court is to follow the dictates of justice (section 58 CPA). In my opinion, it is unquestionable that the dictates of justice require dismissal of the Plaintiff’s application to vacate the Hearing.

54. It is in the interests of both parties to have the appeal determined prior to any enforcement proceedings continuing by way of registration of judgments and the like.

55. For these reasons, the Plaintiff’s application was dismissed.

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Decision last updated: 01 March 2022