Davdent Pty Limited v Attinger

[2003] NSWSC 954

CITATION:	Davdent Pty Limited v Attinger [2003] NSWSC 954
HEARING DATE(S):	21 October 2003
JUDGMENT DATE:	21 October 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J at 1
DECISION:	Orders Made (see par 20)
CATCHWORDS:	MORTGAGE - SOLICITORS - COSTS - INTEREST ACCRUED ON MONEY ORDERED PAID INTO COURT - MOTION BY DEFENDANT MANIFESTLY UNTENABLE
PARTIES :	Davdent Pty Limited v Heather Ann Attinger
FILE NUMBER(S):	SC 12449/99
COUNSEL:	M.M. McCue (Plaintiff) In Person (Defendant)
SOLICITORS:	R.L. Kremnizer & Co (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Tuesday 21 October 2003

12449/99 - DAVDENT PTY LIMITED v HEATHER ANN ATTINGER

JUDGMENT

1 HIS HONOUR: There is listed for hearing today a notice of motion originally filed on 26 September 2002 by the plaintiff, Davdent Pty Limited. That motion sought orders for payment out of certain specified amounts, respectively $53,952.97 and $7467.68. In the usual form the motion sought “such other order as the court thinks fit”. In the course of time this motion has been before the court and dealt with by other judges. The first mentioned sum was ordered paid out to solicitors for the plaintiff on account of costs some considerable time ago. The second mentioned sum was ordered paid out to the same solicitors pursuant to an order of Greg James J made on 7 March 2003.

2 It is unnecessary to describe at length the proceedings. It suffices for present purposes to observe that the plaintiff was a mortgagee who commenced proceedings against the defendant, an alleged defaulting mortgagor. The relevant property was apparently vacant land in Wahroonga. Judgment was entered in favour of the plaintiff and a sale took place. Money was paid into court pursuant to consequential orders.

3 No doubt the amount of costs was inflated by a number of skirmishes between the parties including the proceedings for removal of a caveat, which at some stage was entered upon the title.

4 The issue before me on the motion which I have mentioned is quite discrete and quite short. At the time the orders for payment out were made it was apparently overlooked that the amount paid into court had accrued some interest. It appears from the affidavit of Margaret Mary McCue sworn 16 May 2003 that there has been in court an amount of $1915.45 remaining. The plaintiff seeks payment out to it of that amount.

5 The defendant’s submission is that the amount should remain in court pending applications and other litigation which she foreshadows. For the purpose of determination of the issue on the plaintiff’s motion it is sufficient to advert to the reasons for judgment of Greg James J given on 7 March this year. His Honour drew attention to a judgment by Taylor AJ, which had concluded with orders including a declaration that the plaintiff was entitled to recover under the mortgage its costs incurred with respect to the mortgage other than such costs in relation to the proceedings, the number of which was quoted. The present proceedings have a different number and are therefore “other than that” in the quoted number.

6 On 7 March the defendant did not appear. His Honour found that she was on notice of the application that day and he proceeded to make the orders sought for payment out of the smaller of the two sums which I have mentioned. What is significant is that there was before his Honour, and the same document is before me as Exhibit A, a bill of costs in itemised form pursuant to the Legal Profession Act. That bill of costs has not, I am informed, been the subject of assessment. Nevertheless his Honour, as I also do, looked at the bill and noted that the total of the bill and disbursements exceeded some $18,000. His Honour went on to say:

“It is clearly apparent that under the contract of mortgage the plaintiff is entitled to sums against the defendant in respect of the land or the proceedings covered by the mortgage well in excess of the amount here sought.”

7 His Honour’s reference to the “amount here sought” is a reference to $7467.68. The relevance of the claim for costs of some $18,000 is that it so far exceeds the amount of $7467.68 that on any view the amount will be recoverable by the plaintiff in accordance with orders and declarations in force and effect.

8 The real issue for me today is simply whether the same approach should be applied to the sum of $1915.45. In other words, I look at an accumulation of that figure and the $7,000 odd figure and determine whether or not I should adopt the same approach as did his Honour. I see no error in his approach and for my part I would adopt it. Accordingly I will in due course make an appropriate order.

9 This matter was before Whealy J as list judge on 8 August 2003. The plaintiff’s notice of motion, about which I have been speaking, was fixed for hearing today. Pursuant to leave the defendant also filed a notice of motion. That had been done on 18 July. Whealy J directed that that matter be listed today but it was listed only for directions.

10 On my invitation the defendant applied that that motion be heard today. That application was opposed by the solicitor appearing for the plaintiff and I indicated that I would in due course make a ruling in respect of it. It was pointed out that as the matter had simply been listed for directions the plaintiff had not filed or prepared any written submissions in respect of it. Having regard to the conclusions that I have formed I propose to deal with the notice of motion. There seems to me to be no practical point to be served in the further adjournment of this notice of motion.

11 The defendant has sought to support the notice of motion by her affidavit sworn 18 July 2003 and there is an accompanying written submission of the same date. The defendant has also orally addressed the court.

12 The first matter to which I should turn is the attempt to join, as apparently parties to the motion, a number of solicitors and barristers who have appeared from time to time or been concerned in the litigation, as well as directors of the plaintiff company. The defendant has both in oral submission and in her written submissions referred to a great number of Supreme Court Rules and also to various sections and, as I shall later note, a number of legal authorities together with an academic article published by one, Dr Melissa A Perry. It is clear that the defendant misunderstands and misconstrues almost the entirety of the rules to which she has referred.

13 I return, however, to the attempt to join a large group of people simply by endorsing their names upon the notice of motion. This is not a facility available to the defendant and to the extent that she purports to make them parties, the notice of motion is defective. The defendant has drawn my attention to a series of hearings and orders made by Greg James J, who is, in the arrangements current within the court, the judge in charge of the Possession List. It is therefore unsurprising that this matter has been before him on a number of occasions.

14 The defendant has taken out a print from the court’s computer records and from that she has deduced that there have been hearings by the judge in chambers in her absence. She presumes that this is some demonstration of either misconduct or excess of jurisdiction exercise on his part. Obviously she has raised this matter before his Honour and he gave her leave to file a notice of motion seeking an order that he disqualify himself.

15 In oral submissions the defendant has construed that leave as his Honour making an order of self-disqualification and, as I understand what she has said, she sought to affirm this by reason of the coincidental circumstance that his Honour is not hearing the matter today but it is listed before me.

16 I should record that the matter is before me simply in the ordinary and routine course of allocation of fixtures for hearing by available judges. The defendant has drawn attention to the statutory abolition of the technical difference between a judge sitting in court and sitting in chambers. There is no need for me to relate the history of that difference but from a number of judgments in the High Court where there is reference to recusal of judges by themselves or enforced recusal by orders of appellate courts, the defendant has concluded that there is some binding authority that a judge can no longer make orders in chambers. That is a total misconception.

17 The defendant has made submissions ranging far beyond the orders that she seeks in her motion. I see no basis for making an order that Greg James J disqualify himself from hearing any matters relating to the defendant, even if I had the power so to do. Part of the motion seeks to overturn orders already made by his Honour in respect of the release of the amounts of $53,952.97 and $7467.68. Any attack upon those orders needs to be made in accordance with appellate procedures and I possess no jurisdiction to overrule orders regularly made in the exercise of jurisdiction by a judge of the court.

18 The motion also indicates that the order for payment out of the interest amount is opposed. There are a number of orders sought in the notice of motion. It is unnecessary, in my view, to recite all of them. If necessary, they can be read. The defendant has made a variety of assertions concerning contempt, fraud, misconduct and a number of other matters to which she refers from time to time. She seeks that all the money be paid back. In my view the motion, which she has brought, is totally misconceived and this can be determined simply by looking at the notice of motion, the affidavit in support and the written submission to which I have referred.

19 It is true that there are a number of references and quotations scattered among those documents but none of them are relevant to any issue before me. As I indicated, having read that material and heard the oral submissions of the defendant I have come to the conclusion that no useful purpose would be served by giving further directions or leaving this matter on foot any longer.

20 I return therefore to the making of orders. On the plaintiff’s motion:

1. I order that the sum of $1915.45 in court be paid out to the solicitors for the plaintiff.
2. I order the defendant to pay the plaintiff’s costs of the further hearing of that notice of motion.
3. The defendant’s notice of motion filed on 18 July 2003 is dismissed.
4. I make no order for costs in respect of that motion having regard to the stance adopted by the plaintiff, which I have indicated.

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Last Modified: 10/28/2003