Cassegrain & Anor v CTK Engineering Pty Ltd & Anor

[2008] NSWSC 78

CITATION:	Cassegrain & Anor v CTK Engineering Pty Ltd & Anor [2008] NSWSC 78
HEARING DATE(S):	8 February 2008
JUDGMENT DATE :	8 February 2008
JURISDICTION:	Equity Divsion
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	8 February 2008
DECISION:	Application referred to trial judge.
CATCHWORDS:	PROCEDURE – Whether trial judge should ordinarily deal with application for stay of enforcement of costs order.
LEGISLATION CITED:	Legal Practitioners Act 1987 (NSW)
CATEGORY:	Procedural and other rulings
PARTIES:	Thomas Jean Roger Cassegrain (First Plaintiff) Emilie Cassegrain (Second Plaintiff) CTK Engineering Pty Ltd (First Defendant) Claude George Rene Cassegrain (Second Defendant)
FILE NUMBER(S):	SC 4277/04
COUNSEL:	P. Thompson (Sol) (Plaintiffs) A.P.P. Lo Surdo (First Defendant) N.J. Kidd, Ms A. Tsekouras (Second Defendant)
SOLICITORS:	Thompson Eslick (Plaintiffs) Norton White Lawyers (First Defendant) Evangelos Patakas (Second Defendant)

4277/04 Cassegrain & Anor v CTK Engineering Pty Ltd & Anor

JUDGMENT – Ex tempore
8 February, 2008

1    The Second Defendant in proceedings 4277 of 2004, for whom Mr Kidd and Ms Tsekouras of Counsel appear, makes urgent application in the Duty Judge's list for a stay of enforcement of costs orders made in those proceedings by White J.

2    The application is said to be urgent because the party to the proceedings entitled to the benefit of that order has issued a letter of demand requiring payment of the costs order. No step has been taken by the party entitled to the costs order to enforce the order other than the issuing of that demand. The Second Defendant has requested an undertaking that no step be taken to enforce the order but the undertaking has not been forthcoming.

3    The basis of the application is that the Second Defendant has lodged an appeal against the assessment and that, if the costs order is paid, the proceeds will go to a party who is resident overseas or to the liquidator of a company in liquidation.

4    When Mr Kidd explained the nature of the matter to me I expressed the view that, as matters presently stood, I could see no basis for an urgent application in the Duty Judge's list, especially as no actual step for enforcement of the order by the service of a bankruptcy notice or the issue of a writ of execution or the issue of some garnishee proceedings was imminent, at least as far as the evidence revealed. However, I said that if all parties agreed, as the matter was now brought into my list and I had disposed of all other matters in the list, I would deal with the matter in order to save further costs and delay.

5    Mr Lo Surdo who appears for the First Defendant, and Mr Thompson who appears for the Plaintiffs, then explained the background of the matter, which cast it in a different light. There has already been an appeal from the original assessment of the costs order which upheld that assessment. The position of Mr Lo Surdo and Mr Thompson is that, if any stay for enforcement of an order pending a further appeal is sought, the application should be made to the judge who made the costs order in the first instance, that is, Justice White.

6    Mr Kidd says, correctly, that what is now appealed from is not the making of a costs order, but the implementation of it by the process provided by the Legal Practitioners Act 1987 (NSW). He says that if there is error, it is error in that process and Justice White had no part to play in that process.

7    That is true enough. However, whether or not the order should be enforceable immediately in the circumstances which have occurred raises many considerations which will be known to his Honour by reason of the overall circumstances of the case, and which I think it is best to leave to his Honour to determine with the benefit of that knowledge. Especially is this the case where, as here, there is no evidence that any immediate enforcement is threatened which would have irremediable consequences for the Second Defendant unless now restrained.

8    As a matter of general practice, it is preferable for the judge who conducted the trial to deal with all matters arising from the working out of his or her judgment, whether it be as to the terms of the judgment itself, or as to whether the judgment, or some part of it, ought to be stayed pending an appeal.

9    Nothing has so far emerged which would cause me to depart from that usual procedure. In those circumstances, I decline to make any order today. I leave it to the Second Defendant to approach Justice White with any application which the Second Defendant wishes to make. It will be a matter then for his Honour to decide whether his Honour wishes to deal with it in view of his knowledge of the case generally, or is content for some other judge to deal with it. That decision is one which I do not think I should make for myself.

10    Costs reserved.

– oOo –