Berry v Haynes Robinson

[2011] WADC 34

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   ALBANY

CITATION:   BERRY -v- HAYNES ROBINSON [2011] WADC 34

CORAM:   PRINCIPAL REGISTRAR GETHING

HEARD:   7 FEBRUARY 2011

DELIVERED          :   7 FEBRUARY 2011

FILE NO/S:   ALB CIV 5 of 2006

BETWEEN:   ELSPETH BERRY

Plaintiff

AND

HAYNES ROBINSON
Defendant

Catchwords:

Civil Judgments Enforcement Act - Suspension order

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     In person

Defendant:     Mr P A Kyle

Solicitors:

Plaintiff:     Not applicable

Defendant:     Haynes Robinson

Case(s) referred to in judgment(s):

Berry v Haynes Robinson [2009] WASCA 41

Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308

Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79

Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203

Robinson v Berry [2008] WADC 44

PRINCIPAL REGISTRAR GETHING:  [This judgment was delivered extemporaneously on 7 February 2011 and has been edited from the transcript.]

1. By application filed 28 September 2010 the judgment debtor, Ms Elspeth Berry, seeks a stay of a property seizure and sale order.  I have treated the application as being for a suspension order pursuant to the Civil Judgments Enforcement Act 2004 (WA) (CJEA) s 15. The suspension order regime replaces the stay provisions in the old regime.

2. The suspension order relates to a property seizure and sale order (PSSO), issued pursuant to the CJEA dated 4 May 2010.  The PSSO relates to a judgment sum of $65,950.98.  With costs, the PSSO is in the amount of $67,057.08.  The PSSO authorises the sheriff to seize and sell property at 568 Nanarup Road, Kalgan in Western Australia.  The judgment debt arises out a bill of costs in the action which was taxed on 7 January 2010. 

3. The judgment debtor, Ms Berry, filed two affidavits in support of the application, one dated 23 September 2010 (the first affidavit), and the other dated 23 November 2010 (the second affidavit). 

4. By directions made on 18 November 2010 the judgment debtor had until 4 December 2010 to file and serve any affidavits in opposition to the application.  It did not file any affidavits.

History of the action

1. The history of the action is set out in detail in the decision of his Honour Judge Stevenson in Robinson v Berry [2008] WADC 44. The action commenced life in the Magistrates Court as a claim for unpaid legal expenses by the plaintiff. This action was Albany Magistrates Court action 228 of 2003. The legal fees were incurred in relation to a dispute arising out of the sale of the judgment debtor's property in Albany in 2003. The judgment debtor counterclaimed, alleging that as a result of the conduct of the judgment creditor as her lawyer she suffered loss on the eventual sale of the property. That loss was said to be the difference between the net sale proceeds and the market value of the property at the date of settlement. Because of the value of the counterclaim, the action was transferred to the District Court.

2. In March 2008 Judge Stevenson allowed the claim for legal costs and dismissed the counterclaim.  At the same time, his Honour ordered that the judgment debtor pay the judgment creditor's costs of the action.  As I have mentioned, the judgment debt is the taxed costs of the application. 

3. The judgment creditor subsequently appealed this decision to the Court of Appeal.  The Court of Appeal upheld the decision of his Honour Judge Stevenson (Berry v Haynes Robinson [2009] WASCA 41).

4. In her first affidavit the judgment debtor deposes that she had not by the date of swearing that affidavit been served with a copy of any taxed bill of costs.  She deposes that she had written to the Attorney‑General raising concerns with the taxation process and annexes her letters.  In these letters, dated 11 December 2009 and 20 January 2010, the concerns raised go back to the initial proceedings in the Albany Magistrates Court.

5. The judgment debtor then goes on to refer to the efforts of the bailiff to seize property on 31 August 2010.  She deposes that the list of property seized was inadequate and that a computer and printer listed in that list were 'seriously undervalued'. 

6. The judgment debtor annexes to her first affidavit two further letters to the Attorney‑General dated 1 September 2010 and 6 September 2010.  In those letters she raised a concern about not being allowed access to certain court documents. 

7. In her second affidavit the judgment debtor sets out some history of the action, and in particular matters relating to the listing of the action for trial.

Legislative framework 

1. The power of this court to grant a suspension order is found in CJEA s 15. Section 15(3) provides that on an application for a suspension order:

   The Court may only make such an order if there a special circumstances that justify doing so.

2. Section 15(4) provides:

   A suspension order may be made for any period, including an indefinite period, and may be made on terms as to costs or otherwise.

3. On an application for a suspension order, the onus is on the party seeking the order to persuade the court that it should exercise its discretion in favour of the order:  Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203, and Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308.

4. Section 15 of CJEA contemplates a two stage process. The first stage is to determine whether the applicant has cleared the hurdle of establishing that there are special circumstances. If this is established, then the power and thus the discretion of the court is enlivened. This is the second stage. This two stage process mirrors the position in relation to stays of execution both under the inherent jurisdiction of the court and the former O 47 r 13 of the Rules of the Supreme Court 1971 (WA) (RSC); see generally Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 at 91 and 94.

5. By parity of reasoning to the stay of execution cases, in the second stage the court will consider issues like the prospects of success in an appeal where this is relied on as the basis for a suspension order.  The court will consider the hardship and the balance of convenience encompassing the same sorts of considerations as will arise where the court considers the grant of an interlocutory injunction.  Hamersley Iron [91] and [94].

Disposition of the current matter

1. In submissions before me, the first argument raised by Ms Berry was that the PSSO is tainted and defective because it is based on a bill of costs that is defective.  The bill of costs is defective because it arises out of a District Court action which, and to use her words, is 'legally out of bounds'.  The reason why it is legally out of bounds is that, in her submission, it relates to the question of legal costs and ought to have been first aired on a taxation process in the Supreme Court.  Having had the bill of costs taxed in the Supreme Court, the action for recovery ought to have been brought in the Supreme Court.  The argument then, at least in its first limb, is that because the execution is based on an underlying claim which is legally out of bounds, the execution of it ought to be stayed.

2. The second basis is that Ms Berry states that she was not served with a copy of the taxed bill of costs.  Ms Berry appeared at the attendance on 7 January 2010 to tax the costs.  From submissions and from the notes of the Deputy Registrar, it appears that Ms Berry left the taxation hearing halfway through.  In her first affidavit she deposes that she has never been served with a copy of the taxed bill of costs.  I am not aware of any requirement to serve a party with a copy of the taxed bill of costs prior to execution of an enforcement order based on the bill of costs.  The judgment debtor also submitted that had she been served with the bill of costs she would have made a challenge to that bill of costs.  The challenge, as I understand it, was that it was based on a claim that was legally out of bounds.

3. It seems to me that the first limb of the argument, which is that the execution is based on a claim which is legally out of bounds, does not constitute special circumstances.  In essence, the submission is that the District Court Judge erred in the decision recorded as Robinson v Berry [2008] WADC 44. It is thus then a submission that the Court of Appeal erred in not overturning the first instance decision.

4. The CJEA regime allows a party who has a valid order from a court to enforce that order.  Even when there is an ongoing appeal, a successful litigant at first instance will ordinarily be entitled to enforce judgment pending the determination of the appeal: Ladange and Eastland Technology.  It seems to me in this case that the position of a judgment creditor who has the benefit of a successful appeal ought to be stronger.

5. In relation to the issue of a possible taxation or review of the taxation of the bill of costs, there is a procedure under the RSC allowing a party to undertake a review process following the taxation of the bill of costs. There are time limits to that process and it may well be that the time limits have expired. Be that as it may, I will treat the application as favourably as I can to Ms Berry and assume that there is a potential for a review process for a taxation.

6. It seems to me that that then brings the case analogously to a case where there is an appeal on foot.  As I have previously mentioned in summarising the law, the court is also able to consider issues like the prospects of the success of appeal in considering whether to grant a suspension order.  On the submissions made to me, the fundamental basis of the challenge to the taxation is the argument that the underlying decision was out of bounds.  As I have indicated, the fact that Ms Berry may think that is not sufficient to stop the enforcement process.  The judgment creditor is entitled to enforce the judgment of the District Court which has not been overturned on appeal.

7. On the information available to me, I am not persuaded that there have been special circumstances made out so as to justify the making of a suspension order.  As I have previously mentioned, the onus is on the party seeking the order to persuade the court that it should exercise its discretion.  On the material available to me that onus has not been discharged. 

8. Therefore, the appropriate order in this case is that the application for a suspension order dated 28 September 2010 ought to be dismissed.  That leaves the question of costs.  What I propose to do is to hear from the parties in relation to costs so as to tax them and fix them now so as not to add to any expense by the preparation of bills of costs and a further appearance.