Freehill Hollingdale & Page v Ioannou
[2000] WASC 168
•22 JUNE 2000
FREEHILL HOLLINGDALE & PAGE -v- IOANNOU & ANOR [2000] WASC 168
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 168 | |
| 22/06/2000 | |||
| Case No: | CIV:1213/2000 | 19 APRIL & 23 MAY 2000 | |
| Coram: | SCOTT J | 23/05/00 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for the plaintiff | ||
| PDF Version |
| Parties: | FREEHILL HOLLINGDALE & PAGE MARILYN IOANNOU SHERIFF OF THE SUPREME COURT OF WESTERN AUSTRALIA |
Catchwords: | Guarantee and indemnity Actions against surety Legal costs part of liability Writ of fieri facias First defendant not liable to play plaintiff's costs No lawful basis for issue of writ of fieri facias Writ of fieri facias wrongly issued |
Legislation: | Legal Practitioners Act 1893, s 66(1), s 72 The Supreme Court Act 1935, s 117(1) |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MARILYN IOANNOU
First Defendant
SHERIFF OF THE SUPREME COURT OF WESTERN AUSTRALIA
Second Defendant
Catchwords:
Guarantee and indemnity - Actions against surety - Legal costs part of liability - Writ of fieri facias - First defendant not liable to play plaintiff's costs - No lawful basis for issue of writ of fieri facias - Writ of fieri facias wrongly issued
Legislation:
Legal Practitioners Act 1893, s 66(1), s 72
The Supreme Court Act 1935, s 117(1)
(Page 2)
Result:
Judgment for the plaintiff
Representation:
Counsel:
Plaintiff : Mr S Penglis
First Defendant : Mr M L Segler
Second Defendant : No appearance
Solicitors:
Plaintiff : Freehill Hollingdale & Page
First Defendant : Shane Michael Brennan
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 SCOTT J: By an originating summons dated 23 February 2000, the plaintiff sought orders:
"1 A declaration that the writ of fieri facias ("fi fa") filed by the First Defendant in the Supreme Court of Western Australia on 8 February 2000 is invalid.
2 An order restraining the Second Defendant from taking any action in respect of the said writ of fi fa.
3 An order that the First Defendant do pay the Plaintiff's costs of this action."
2 Following the hearing of the originating summons on 23 May 2000, orders were made in terms of the originating motion except that in relation to costs the first defendant was ordered to pay the plaintiff's disbursements only.
3 The basic facts surrounding this action are that the first defendant guaranteed a mortgage of 6 November 1996 granted by her husband in favour of Beaumaris City Shopping Centre Pty Ltd ("Beaumaris"), the lessor of a shop to her husband.
4 It is common ground that the first defendant's husband was unable to meet his debts and as a result the first defendant was called upon pursuant to the guarantee.
5 Part of the debt owed by the husband of the first defendant to Beaumaris were the legal fees payable by the first defendant's husband to the present plaintiff. Those fees arose out of the lease agreement between Beaumaris and the first defendant's husband who had occupancy of business premises at the shopping centre.
6 Following the preparation of the lease an account was sent by the plaintiff to Beaumaris for professional fees in the sum of $17,605.19, which was paid by Beaumaris.
7 Pursuant to the guarantee, the first defendant became liable to indemnify Beaumaris for that sum. As a consequence of becoming liable as guarantor to pay those legal fees, the first defendant sought to have the costs taxed, presumably on the basis that the fees were excessive. It was accepted by the plaintiff that the first defendant was a "person charged with an itemised bill of costs" as provided for in s 66(1) of the Legal Practitioners Act 1893 ("the LPA") and the plaintiff consented to taxation.
(Page 4)
8 Section 66 of the LPA provides:
"66(1) Any person charged with an itemised bill of costs may have the same taxed by the taxing officer of the Supreme Court, upon first serving upon the practitioner, within 30 days from the service of such itemised bill, a written notice of intention to have the same taxed."
9 The costs were taxed by a Registrar of this Court, who ultimately allowed the bill in the sum of $6,480.84. The Registrar signed the allocater for that amount. In addition, the Registrar awarded costs of the taxation to the defendant.
10 Following the taxation of costs, the solicitors for the first defendant issued a writ of fi fa against the plaintiff seeking to recover the difference between the account as originally rendered and the costs as ultimately allowed by the Registrar. It is that writ of fi fa which is the subject of the originating summons in these proceedings.
11 Following the taxation of costs, the plaintiff remitted to Beaumaris the difference between the original account and the amount allowed on taxation. Thus, although it was not Beaumaris who sought to tax the costs but the first defendant, the plaintiff accepted that the liability of Beaumaris with respect to the plaintiff's costs was the amount as allowed on taxation. It was as a consequence of accepting that position that the plaintiff reimbursed Beaumaris to the extent of the costs that were taxed off the bill.
12 The first defendant, as part of satisfying her liability under the guarantee, paid the sum of $20,000 to Beaumaris' agent, Churchill Knight on 7 October 1997. At that stage, the first defendant was seeking to obtain an assignment of the lease from her husband to herself and the $20,000 was to enable the debts of the first defendant's husband to be settled, so that the assignment could be finalised. As it turns out, Beaumaris was not prepared to agree to the assignment.
13 Because Beaumaris was not prepared to accept the assignment, on or about 17 October 1997, the bank cheque for $20,000, which the first defendant sent to Churchill Knight, was returned to her. The first defendant then entered into negotiations with Beaumaris and eventually arranged for a lease of the same business premises. On or about 20 October 1997, the first defendant forwarded the cheque for $20,000 to Churchill Knight once again. The first defendant took over the lease and commenced to pay the rent.
(Page 5)
14 It is common ground that the first defendant's husband was subsequently sent to prison and was released on 1 September 1998. From that date onwards, the first defendant's husband continued to operate the business.
15 The first defendant subsequently sought to have the account from the plaintiff to Beaumaris taxed. The reason for doing so was because the first defendant was liable to indemnify Beaumaris for those costs, as I have previously discussed. The results of that taxation have been indicated earlier in these reasons.
16 Section 72 of the LPA provides:
"72 Where under this division a bill of costs is taxed and as a result of that taxation the amount which has been paid or deducted in respect of that bill is more than the amount authorised by the taxation, to the extent of the excess the person charged has a claim for repayment which may be certified and enforceable under section 70(1) as though allowed under that subsection."
17 It is common ground that no such certificate was obtained. Had a certificate been sought, it would have been opposed. It would have been inappropriate for such a certificate to be granted in any event because the first defendant was not the person liable to pay the plaintiff's costs.
18 Notwithstanding the failure of the first defendant to obtain a certificate under s 72, which as I have said would have been inappropriate in any event, the first defendant issued a writ of fi fa for the difference between the costs as originally rendered and the amount allowed on taxation. It is that writ of fi fa which is the subject of the present application.
19 Section 117(1) of the Supreme Court Act 1935 ("the Supreme Court Act") provides:
"117(1) Subject as hereinafter provided, and to the Rules of Court, a judgment for the recovery by or payment to any person of money may be enforced -
(a) by writ of fieri facias or other like process;"
(Page 6)
21 What is important in this case is that there was no "judgment for the recovery or payment to any person of any money" as provided for in s 117 of the Supreme Court Act. As I have said, the plaintiff reimbursed Beaumaris for the amount of costs overcharged and thus has satisfied any liability that the plaintiff may have had in that regard.
22 Beaumaris is the party who obtained indemnity from the first defendant and if the first defendant has any cause of action with respect to the overpayment of any legal fees, that cause of action would be against Beaumaris. There was no contractual relationship between the first defendant and the plaintiff and the plaintiff's account for services rendered with respect to the preparation of the lease was never rendered to the first defendant. Her liability to pay that account only arose pursuant to the guarantee which she had given on behalf of her husband.
23 In my view there was no lawful basis upon which the writ if fi fa could have issued. The writ of fi fa itself reveals the basis of the error. That document, inter alia, provides:
"To the Sheriff, greeting:
Whereas in the abovenamed matter it was on 8 October 1998 ordered that the party charged to pay the practitioner Freehill Hollingdale & Page costs to be taxed, which costs have been taxed and have been allowed at $6,480.84 as appears by the Taxing Officer's Certificate dated 8 October 1998, pursuant to section 72 of the Legal Practitioners Act 1893, and as a result of that taxation the amount which has been paid in respect of those costs in the total sum of $17,605.19 is more than the amount authorised by the taxation, the extent of the excess is $11,124.35."
24 Thereafter, the writ of fi fa is a command to seize and execute the property of the plaintiff to satisfy that debt.
25 The fallacy evident in the writ of fi fa is that there was not, nor could there have been a certificate of the taxing officer which ordered the party charged to pay anything to Freehill Hollingdale & Page. As I have already said, the liability of the first defendant was to indemnify Beaumaris with respect to the legal fees charged by the plaintiff to Beaumaris arising out of the lease agreement with the plaintiff's husband.
(Page 7)
26In my view the writ of fi fa was entirely misconceived and wrongly issued. As a consequence, on 23 May 2000, orders were made setting that writ aside with the consequential relief referred to earlier in these reasons.
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