Global Investment House Pty Ltd v Murdock - [2012] SASC 13

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
GLOBAL INVESTMENT HOUSE PTY LTD v MURDOCK & ANOR
[2012] SASC 13
Reasons of Judge Lunn a Master of the Supreme Court
2 February 2012
PROCEDURE
On issuing Summons plaintiff paid filing fee of $3000, but now says it was a "prescribed corporation" under the Surpeme Court Regulations 2005 and so was only liable to pay a fee of $2126 - held "remit or reduce" the filing fee in s 130(2) of the Supreme Court Act 1935 does not empower the Court to refund part of a fee already paid - application adjourned for plaintiff to pursue recovery on restitutionary principles of overpayment of charges.

GLOBAL INVESTMENT HOUSE PTY LTD v MURDOCK & ANOR
[2012] SASC 13
JUDGE LUNN:
Reasons on plaintiff’s application for a partial refund of the filing fee paid

This was an action for possession of a property under Part 17 of the Real Property Act 1886. It proceeded under 6R 204. Upon the issue of the Summons the plaintiff paid a filing fee to the Registrar of this Court of $3000.
By an application of 5 January 2012 (FDN7) the plaintiff seeks an order under s 130(2) of the Supreme Court Act 1935 (“the SCA”) that the Court “exercise its discretion to remit the overpayment of the fee paid by the plaintiff for the issue of the originating process”. In his supporting affidavit the plaintiff’s solicitor deposes that the plaintiff has less than 20 full-time employees and so was not a “prescribed corporation” for the purposes of the Supreme Court Regulations 2005 (“the Regulations”). He stated that he was unaware at the time of paying the filing fee that the action properly attracted a filing fee of only $2126 and not of $3000.
Section 130 of the SCA provides:
130—Court fees
(1)The Governor may, by regulation, prescribe and provide for the payment of fees in respect of proceedings in the court,…
(2)The court may remit or reduce a fee on account of the poverty of the party by whom the fee is payable or for any other proper reason.
By this Section the fees payable for proceedings in this Court are fixed by Regulation, and not by the Rules of Court. Apart from s 130(2), this Court has no power, statutory or inherent, to vary the operation of such Regulations.[1]
[1] Lyberopoulos v Svilans, Lander J, 2 August 2011, [2001] SASC 254.
The relevant parts of the Regulations are as follows:
3—Interpretation
In these regulations, unless the contrary intention appears—
…
corporation has the same meaning as in the Corporations Act 2001 of the Commonwealth;
...
Prescribed corporation means a corporation other than—
(a)a small business; or
…
small business means a corporation that—
(a)has less than 20 full-time equivalent employees; and
(b)is not a subsidiary of a corporation that has 20 or more full-time employees;
subsidiaryhas the same meaning as in the Corporations Act 2001 of the Commonwealth.
…
5—Fees in general jurisdiction
(1)The fees payable for proceedings in the court’s general jurisdiction are—
(a)the fees set out in Schedule 1;
…
Schedule 1—Fees in general jurisdiction
Part 1—General
General Fees
…
2On filing a document by which a proceeding in the court is commenced—
…

(b)     in any other case—
(i)for a prescribed corporation  $3 000.00
(ii)for any other person  $2 126.00
The Court has no means of ascertaining whether a corporation which files a Summons qualifies as a “prescribed corporation” under the Regulations. It is a matter which is only within the knowledge of the corporation. If a corporation wants the benefit of the lesser filing fee for a “prescribed corporation”, it is obliged to give the relevant information about its status under the Regulations to the Registrar. Here it did not do so and the Court charged a filing fee as if it was an ordinary, non-prescribed corporation.
On the hearing of FDN7 the plaintiff’s argument was that “may remit or reduce” in s 130(2) of the SCA gave the Court the discretionary power to retrospectively remit or reduce the filing fee paid and direct that the excess be paid back to the plaintiff. It based its application on this interpretation of s 130(2).
In my judgment in Gerblich v Adplan Pty Ltd (No 3)[2] I touched on this issue when I said:
Section 130(2) of the Act provides “The Court may remit or reduce a fee on account of the poverty of the party by whom the fee is payable or for any other proper reason”. “Remit” in that context means to waive the fee which is otherwise payable pursuant to Supreme Court Regulations 2005. However, the term “remitted to” in the fiat of 23 September, and in the sealed Order, has a different meaning of it being paid back to the original payer. The word “to” in the fiat is inconsistent with “remitted” being used in the sense in which it is used in s 130(2), as it is unnecessary in that context to speak of the fee being remitted “to” the party liable to pay it.
[2] 9 December 2011, [2011] SASC 225.
There is no authority of which I am aware on the meaning of “remit” or “reduce” in s 130(2).[3] Although FDN3 seeks an order remitting the overpayment, I consider that what is sought under s 130(2) is a reduction of the payment.[4] In their combination in s 130(2) “remit or reduce” means remit by a total waiver or reduce by a partial waiver of the relevant fee. Section 130 and the relevant Regulations are directed to what fee is payable when a summons is issued. In my view, s 130(2) only permits the Court to remit or reduce a fee which has not then been paid and does not extend to a retrospective remitting or reducing of a fee which has already been paid. No authority was cited that the limited power conferred by s 130(2) of the SCA could extend to a power to reduce retrospectively and to order a repayment of part of a fee which had already been paid.
[3] There is authority that “remit” in a different context means to send money to a payee, but that is not the sense in which it is being used here: Comber v Leyland [1898] AC 524 at 530.
[4] The plaintiff’s solicitor seemed to be suggesting that “remit” here could mean pay back, but for the reasons given I do not accept that.
Accordingly, I hold that s 130(2) does not authorise the order sought in FDN7. There is no other head of power, such as the inherent jurisdiction of the Court, which could be utilised to justify such an order.
I point out that even if the plaintiff had established a head of power to make the order in question, the evidence which it has adduced does not establish that the plaintiff necessarily was a “prescribed corporation” for the purposes of the Regulations at the time that the fee was paid. The plaintiff’s solicitor only deposed that it had less than 20 full-time employees as at 5 January 2012, but the relevant date was 29 September 2011. Furthermore, to qualify as a “prescribed corporation” it also needs to be established that the plaintiff is not the subsidiary of a corporation which, as at 29 September 2011, had 20 or more full-time employees. This was not mentioned.
This is not necessarily the end of the matter. It was briefly touched upon in the course of argument that there is a common law jurisdiction to recover overpayment of charges in excess of the amounts which were lawfully justified. No case was mounted for this by the plaintiff, but it may be open to it now to do so. Upon my subsequent researches, the simplistic division between mistakes of fact and mistakes of law as being the criteria for restitution of overpayments is not entirely correct.[5] If it so wishes, I will give the plaintiff an opportunity to mount a further case based on these authorities. If it can establish a legal liability on the Registrar to refund any overpayment, I am prepared to consider that on the present application it may be open to give a direction under 6R 20 that he make the refund.
[5] See Mason & Carter Restitution Law in Australia [409] et seq; Halsburys Laws of Australia Volume 23, p 698,303 et seq.
At this hearing the plaintiff’s solicitor handed me a single sheet which stated something to the effect that the Court would inform practitioners about the effect of the new Regulations about corporations. She could not tell me from what publication the sheet came or who was its author. I handed it back to her and said she could later send the whole document to me. I have not received anything further. I presume the plaintiff no longer relies upon it. In any event, it cannot be relevant to my determination that s 130(2) does not give power to make the order sought.
I have today made the following orders on FDN7:
1No order.
2Liberty to plaintiff to renew the application.
3No order as to costs.