H, R T v E, C K (No 3) - [2009] SADC 149

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
H, R T v E, C K (No 3)
[2009] SADC 149
Judgment of His Honour Judge Tilmouth
23 December 2009
PROCEDURE - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS - EXECUTION AGAINST PROPERTY - OTHER WRITS AND MODES OF EXECUTION - CHARGING ORDERS
PROCEDURE - COSTS - RECOVERY OF COSTS
Following final property adjustment orders and an order for costs in favour of the plaintiff, he applied for a further order giving him some form of security for the enforcement of the costs order.
Held: refusing the application, the plaintiff was not entitled to any order either at the trial or now, as he was not entitled to enforce the costs order until they were assessed in an ascertained sum and an allocatur issued.
Enforcement of Judgements Act 1991 s 8, referred to.
McNamara Business & Property Law v Kasmeridis (No 2) (2006) 244 LSJS 413; [2006] SASC 167, applied.

H, R T v E, C K (No 3)
[2009] SADC 149
The issue

Despite making exhaustive property adjustment orders on 4 September 2009 under the Domestic Partners Property Act 1996 (SA), the parties continue to remain at loggerheads, this time as to the execution of the orders so made.
The background
So as to appreciate what remains at issue, it is necessary to briefly retrace the course of this protracted action. The plaintiff filed his claim as long ago as 26 October 2007. Following a prolonged trial the court made orders, to summarise, that the defendant pay to the plaintiff within 30 days, the sum of $161,300.00, upon the plaintiff contemporaneously handing to the defendant a duly executed memorandum of transfer over the former home, in Wangianna Street Roxby Downs.[1] Subsequently the court made the orders of 4 September, and further ordered the defendant to pay the plaintiff’s costs as and from 4.00 pm on Friday 29 May 2009 on a party-party basis, such costs to be agreed or taxed.[2]
[1] H, RT v E, CK [2009] SADC 76
[2] H, RT v E, CK (No.2) [2009] SADC 96
The court was advised from the bar table that the plaintiff has formulated those costs in excess of $30,000, however he has not so far taken any steps for the taxation or adjudication thereof, as he might have under 6R 271 of the District Court Civil Rules 2006.
Subsequently the plaintiff filed an application for leave or permission to appeal the order as to costs. This application was referred to the Full Court in light of a subsequent cross-appeal by the defendant. The parties have no idea when those appeals are likely to be heard. For the present, of more moment is the fact that neither have sought a stay of execution in the meantime, under either 6 SCR 300 or 6 DCR 300.
The problem
A settlement proposed for 3 November 2009, did not proceed owing to the fact that the plaintiff sought security for the enforcement of his costs order. He suggests in this application, that he be permitted upon payment of the judgment sum to him, to hold the transfer documents in escrow, pending taxation and payment of his costs. In an earlier letter from his solicitor, he maintained it was:
… prudent … to seek security and therefore that he will provide a duly executed memorandum of transfer in anticipation of settlement occurring, subject to the defendant consenting to [him] lodging a caveat over the Roxby Downs property contemporaneously with settlement.
It therefore clearly emerges that the sticking point is the plaintiff’s desire to secure the enforcement of the order for costs in his favour. For her part the defendant puts a different complexion on things. She engaged a conveyancer and confirms a proposal to settle on 3 November 2009, which fell through because the plaintiff insisted as part of the settlement package, on a caveat being lodged over the subject property. She claims to have secured the necessary funds to effect settlement of $161,300.
Analysis
There are two things to be said immediately about this issue. First of all the enforcement of costs was not contemplated nor raised by the parties in the final orders made by the court. The second is that there is no present liability for the defendant to pay costs, until they have been taxed and a court allocatur issued. It might also be added that the plaintiff has not put forward any material to suggest the defendant is likely to default in meeting whatever costs obligations might eventually befall her.
In essence then, the plaintiff now seeks a charge in one form or another, over the former home or pursuant to s 8 of the Enforcement of Judgments Act 1991 (SA), for instance. Even if this issue was raised at the time of making the final orders, it is clear the court could not make an order pre-empting enforcement, or in the nature of a charging order, because no liability for the payment of costs had as yet crystallised.
In McNamara Business & Property Law v Kasmeridis (No. 2),[3] Gray J held:
[24] It is clear on the United Kingdom authorities that a charging order cannot be made for a costs order that has not been taxed. As s 8 of the Enforcement of Judgments Act 1991 and its counterpart, s 1 of the Charging Orders Act 1979 (UK), share the same genesis, there is good reason to follow the United Kingdom authority. It also accords with the plain meaning of the legislation.
[25] The submission that the solicitors are judgment creditors should be rejected. Sections 3 and 8 of the Enforcement of Judgments Act 1991 should not be interpreted so as to include an order for costs that has not yet been ascertained. A party with the benefit of an order for costs to be taxed will only be a judgment creditor once an allocatur has been issued: Andersons Solicitors v Schigulski (2004) 88 SASR 1 at 2. An allocatur has not been issued with respect to the High Court order for costs. The Full Court had not yet made any order for costs.
The authorities his Honour had in mind included Widgery v Topper,[4] in which it was held that “a charging order cannot be given except for an ascertained sum, and not for costs … until they have been taxed,” and A&M Records v Darakdjian,[5] to like effect.
[3] (2006) 244 LSJS 413; [2006] SASC 167
[4] (1877) 6 Ch D 364 at 369
[5] [1975] 1 WLR 610 at 1612-1613
The situation is then, for reasons best known to himself, the plaintiff is endeavouring to secure something he neither sought nor could have obtained at trial. For these reasons, insofar as an order is sought for holding executed documents in escrow, it is refused. So is any order giving him a charge, lien or caveat over the real property. In any case as Mr Swan points out, the defendant “needs access to the title for financing”, so any such orders must be refused on grounds of impracticability in any case.
Conclusion and orders
Since the parties do not seem to agree on anything, some structure and certainty is required. The best the court can do is to make an order consistent with the original order contemplating settlement within 30 days. However since the Christmas holiday period is upon us, the sensible course seems to be to order the defendant to pay to the plaintiff the sum of $161,300 plus interest thereon calculated pursuant to s 40 of the District Court Act as an from 4 October 2009 – subject however to further argument, and requiring the defendant to deliver a memorandum of transfer for the execution of the plaintiff and for him to hand it over to enable settlement to proceed, by no later than Friday 29 January 2010.
Before entering those orders, the parties are entitled to speak to any impediments that might otherwise compromise their ability to comply therewith, and of course as to costs of the “application”. Liberty for both parties to apply on short notice.