Fares (bht Fares) v Saad

[2020] NSWDC 309

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Fares (bht Fares) v Saad & Ors [2020] NSWDC 309
Hearing dates:	17 June 2020
Date of orders:	18 June 2020
Decision date:	18 June 2020
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 23-26
Catchwords:	COSTS – attempted enforcement of consent judgment – execution of writ for levy of judgment debtor’s property – application for costs of execution – application for costs for previous ineffective attempts to enforce judgment
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 98, 137 Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 39.25, 39.28
Category:	Procedural and other rulings
Parties:	Ms J Fares by her tutor Mr R Fares (Plaintiff) Ms C Saad (First Defendant) Mr F Saad (Second Defendant) Ms D Saad (Third Defendant)
Representation:	Solicitors: Lamrocks Solicitors for the Plaintiff SLF Lawyers for the First, Second and Third Defendants
File Number(s):	2013/89874
Publication restriction:	Nil

Judgment

INTRODUCTION

1. This application arises from difficulties that the plaintiff, or judgment creditor, who is the applicant on the motion, has experienced in enforcing a consent judgment against the defendants, or judgment debtors, being the respondents on the motion, entered by Wass SC DCJ on 6 February 2017. By that judgment, the respondents were ordered to pay the judgment sum of $40,000 (inclusive of costs and disbursements) to the applicant, and for payment to be made by instalments. No instalments were, however, paid, so the applicant sought to enforce the judgment by various alternative means. These were ineffective before the applicant sought the issue of a writ for levy of property owned by the respondents at Punchbowl.

2. The respondents do not dispute that the applicant’s prior attempts at enforcement were made, as set out in the affidavit (paragraphs 3 & 4) of Mr Groves, the plaintiff’s solicitor, sworn 4 May 2020.

3. This last method of issuing the writ against property has been more effective. On 25 September 2018, the writ for levy of property was issued by the District Court in Parramatta. By this writ, the respondents made payment to the Sheriff of $70,000 pursuant to r 39.25 of the Uniform Civil Procedure Rules2005 (NSW) (the ‘UCPR’). By its Amended Notice of Motion, (which was further amended by myself yesterday, to add two additional orders) the applicant now seeks her costs incurred in this particular form of judgment execution, as well as her costs in all previous, unsuccessful, attempts to execute the judgment, in accordance with the prescribed scale. These are all itemised in order 4 of the Notice of Motion, supplemented by two additional orders that I will return to later in these reasons. The applicant does so having been unsuccessful in trying to negotiate agreement with the respondents of its costs. Had such agreement been reached, it could have been presented to the Court (r 39.28(1)(a) of the UCPR). In the absence of such agreement, the applicant falls back on bringing application to this Court under r 39.28(1)(b) of the UCPR. That rule concerns the costs of execution for this form of enforcement, being the writ of execution against the judgment debtors’ property. The applicant also invokes, further or alternatively, ss 98 and 137 of the Civil Procedure Act2005 (NSW) in relation to other costs incurred in trying to enforce the consent judgment, by the earlier, unsuccessful modes of enforcement.

4. The respondents oppose the application.

FURTHER FACTUAL BACKGROUND

5. Some further background should be elaborated to understand the present contest. In the lead up to the auction, following the issue of the writ, which was scheduled for 16 November 2019, the Sheriff requested that the applicant pay a $10,000 deposit fee.

6. On 6 November 2019, the respondents paid the sum of $70,000 to the Sheriff on account of the outstanding judgment debt and accrued interest. Accordingly, the auction did not proceed.

7. Subsequently, and following request from the Sheriff, the respondents say that on 20 February 2020, they paid the further sum of $13,000. It was not disputed that the Sheriff’s request was founded upon r 39.25(c) of the UCPR. As is apparent on the face of the rule, this sum reflected the Sheriff’s view that security was needed for the applicant’s costs of execution. By its terms, r 39.25(c) is supplementary to r 39.25(b) and the provision of security relates only to those costs which the Sheriff anticipates may be incurred which exceed the ‘known’ costs of execution of costs incurred in connection with the writ. Another way of saying that is that is the security for the ‘unknown’ additional costs incurred by the judgment creditor in the execution of the writ.

8. There was a dispute about when this sum of $13,000 was paid to the Sheriff as security for the applicants’ (unknown) costs of execution. The applicant believes that it was paid on 20 March 2020, however, as noted, the respondents say that this particular sum had been paid somewhat earlier, being 28 February 2020.

THE RESPONDENTS’ OPPOSITION

9. In circumstances where the applicant comes to the court to seek its costs incurred in all attempts to execute a consent judgment, where payments were to be paid by instalment, and where it is not disputed that all methods have – until the writ of execution of property – been unsuccessful on account of conduct by the respondents, the respondents’ opposition to this motion does not strike me as intrinsically meritorious.

10. At any rate, the respondents raise the following points.

11. First, the Court should not accede to the application since a two-month time limitation referred to in r 39.28(2) of the UCPR has not been complied with by the applicant.

12. Further, in connection with this first point, if the Court is empowered to extend the time under that rule, it should not do so in its discretion, having regard to the reasons proffered by the applicant’s legal representative.

13. Secondly, to the extent that costs of earlier unsuccessful modes of enforcement are sought, other than those associated with the writ of execution against property, then the applicant failed to seek costs in relation to those specific attempts at an earlier point. It was intimated that it is now precluded from seeking them.

14. Thirdly, the suggestion was made that some part of the costs paid by the respondents to the Sheriff may have been already received by the applicant.

CONSIDERATION

15. In my opinion, there is no merit in any of the grounds of opposition.

16. As to the time-limit on an application for costs of this form of execution, the terms of r 39.28(2), when read with r 39.25(c), indicate that the time limit of two months to bring the application commences to run from the date the security for the judgment creditor’s costs of execution of the relevant process is received by the registrar, not the date when it is paid by the judgment debtor. In this case there is a clear difference. Whether or not the judgment debtor paid this amount on 28 February 2020 or on 20 March 2020, the Court’s JusticeLink records indicates that the date of receipt was either 8 or 12 May 2020.

17. The applicant referred to orders made by a Registrar of the Court, in chambers on 4 May 2020, as suggesting that the sum of $13,000 was received on, or by, that day. That is not, however, how I read the order. Order 2 made that day expressly was “subject to the Sheriff’s confirmation” that the monies were in fact paid on 28 February 2020. That suggests to me that the Registrar was uncertain whether, as at 4 May 2020, the payment had been made.

18. That means that this application, brought on 14 May, was well within the 2 month time limitation, whether the starting point was either 8 or 12 May 2020.

19. If, however, I am wrong, and I accept that the position as to when the sum was received is not pellucidly clear, I am satisfied that it is in the interests of justice under r 1.12 of the UCPR to extend the period in which application is to be made for costs of this form of execution. I agree with the submission advanced on behalf of the applicant that there seemed to be some common confusion as to when time began to run for the purpose of bringing the application. I also agree that the amount of the security for what might be described as the judgment creditor’s ‘unknown’ costs of execution did not amount to an accurate estimate as to what those costs would ultimately be. That would be a contradiction in terms.

20. As to the second ground of opposition, that the applicant did not specifically seek costs orders accompanying each discrete attempt to enforce the consent judgment, there is no merit to this ground. First, under s 98(3) of the Civil Procedure Act, the timing for when costs may be sought is cast in the broadest of terms, being “at any stage of the proceedings or after the conclusion of the proceedings”. Given the uncontested evidence adduced on the applicant’s behalf on this application, featuring the assertion that the defendants failed to appear in Court on numerous occasions, it might have been something of a futility for the applicant to seek specific costs orders earlier. At any rate, there was nothing that the legal representative for the respondents could point to under the Civil Procedure Act or UCPR to substantiate any point that the applicant is precluded, as it has done here, from storing up in what might be called an ‘omnibus’ application, costs incurred in connection with all prior attempts to enforce the judgment. There was no suggestion that any doctrine of waiver arose to preclude the applicant from doing so. There is, I note, an obvious attraction to the Court in considering those costs at the one time; and especially after the mode of enforcement that has appeared effective.

21. As to the third ground of opposition, I accept the submission of the applicant that if there is controversy as to whether some part of costs claimed has already been paid, this will be a matter for the costs assessor.

22. The grounds of opposition thus fail. The applicant has noted that it seeks no costs otherwise than in accordance with the prescribed scale.

ORDERS

23. I make orders in accordance with paragraphs 1 to 2A, 4(a)-(m) of the Amended Notice of Motion dated 2 June 2020.

24. I make the following additional orders:

1. to the extent necessary, and for the avoidance of doubt, the time for the applicant to file this motion is extended to 15 May 2020;

2. for the sake of completeness, the respondents are to pay the costs of the Notice of Motion and Objection to Instalment Order filed by the applicant on 28 August 2019;

3. for the sake of completeness, the plaintiff is not liable to pay any invoice issued by the Sheriff for any sum of money unless the requirement to pay is authorised under legislation, Court rules or regulations.

25. I grant liberty to apply on 3 days’ notice.

POSTSCRIPT

26. Since the original publication of these reasons, the parties pointed out that the Court omitted to make an order for costs of the application. Having entirely succeeded with its application, the plaintiff sought his costs. The defendants resist, on the grounds that the plaintiff amended its Motion during the hearing (to add the additional orders referred to above) and because of its view that a costs assessor could determine the matter. Neither of these grounds afford a reasonable basis for opposition with the result that the defendants were ordered to pay the plaintiff’s costs of the application.

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Amendments

18 June 2020 - Addition of 'POSTSCRIPT'

19 June 2020 - Amended the 'POSTSCRIPT'.

Decision last updated: 19 June 2020