In the matter of Aquaqueen International Pty Limited

[2016] NSWSC 508

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Aquaqueen International Pty Limited [2016] NSWSC 508
Hearing dates:	20 April 2016
Date of orders:	20 April 2016
Decision date:	20 April 2016
Jurisdiction:	Equity
Before:	Kunc J
Decision:	Receiver appointed to judgment debtor’s property. Asset freezing order extended.
Catchwords:	JUDGMENTS AND ORDERS – Enforcement against judgment debtor’s property – Legal remedies inadequate - Equitable execution by appointment of receiver
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Cases Cited:	In the matter of Aquaqueen International Pty Limited [2016] NSWSC 453 Hall v Foster [2012] NSWSC 974 Penson v Titan National (No 2) [2015] NSWCA 120 Penson v Titan National Pty Ltd (No 2) [2015] NSWCA 403 Penson v Titan National Pty Ltd [2015] NSWCA 404 Penson v Titan National Pty Ltd (No 5) [2015] NSWCA 405
Category:	Principal judgment
Parties:	Titan National Pty Ltd ACN 092 896 029 (First Plaintiff) Kathryn Wood-Weber (Second Plaintiff) Aquaqueen International Pty Ltd ACN 094 129 389 (in liquidation) (Defendant) Shirley Penson (Respondent)
Representation:	P M Barham (Plaintiffs) S Penson (by phone)   Solicitors: Pure Legal (Plaintiffs)
File Number(s):	2013/297134
Publication restriction:	No

EX TEMPORE JUDGMENT (REVISED 26 APRIL 2016)

Summary

1. This is an application by the plaintiffs, Titan National Pty Limited and Kathryn Wood-Weber, for the extension of an asset freezing order originally made by Rein J and the appointment of a receiver over the property of the respondent, Ms Shirley Penson, by way of equitable execution of various judgments for costs against Ms Penson.

2. The plaintiffs move on an interlocutory process filed on 18 March 2016. The principal relief sought is:

1.   An order that the freezing orders made by Justice Rein on 24 November 2015 and extended on 30 November 2015 be further extended pending determination of the orders sought in this Interlocutory Process….

3. Pursuant to s.67 of the Supreme Court Act, until further order, an order that Trent Andrew Devine or in the alternative Christopher John Palmer be appointed as Receiver and Manager of the property described as Unit X, XXXX, Alexandria NSW 2015 being the whole of the property in Folio Identifier XXXX (the “Property”).

4.   An order that Trent Andrew Devine or in the alternative Christopher John Palmer be indemnified by way of first ranking priority for his remuneration costs and expenses as Receiver and Manager at the rates notified to the Court.

5.   A direction that third party expenses incurred by the Receiver and Manager comprising:

a.   Insurance premiums

b.   Advertising fees

c.   Real estate agent’s commission

d.   Legal fees

e.   Postage and couriers

f.   Phone, fax and internet

g.   Bank fees

h.   Cleaning fees

i.   Printing and stationery

j.   Sundry expenses

be paid as a cost of the receivership and that such sum be paid from the funds received by the Receiver and Manager.

7.   (sic) That the Respondent, Shirley Penson, vacate the Property within 21 days of the date of these Orders.

8.   In the event that the Order contained in paragraph 7 is not complied with, that leave be granted for the issue of a Writ of Possession forthwith.

9. Costs of this application in a fixed gross sum pursuant to s 98(4)(c) of the Civil Procedure Act.

3. The plaintiffs are entitled to the relief they seek.

Procedural history

4. The procedural history giving rise to the present application is, to say the least, convoluted. I gratefully adopt the history set out in the judgment of JC Campbell AJA in Penson v Titan National (No 2) [2015] NSWCA 120:

3.   Ms Penson is the shareholder and director of a company called Aquaqueen Pty Limited. It had entered into a lease from a company called Titan National Pty Limited of some premises in which Aquaqueen conducted a business of bottling water. Ms Wood-Weber was an officer of Titan and a shareholder in it. Aquaqueen sued Titan and Ms Wood-Weber in the District Court concerning certain losses Aquaqueen claimed it had suffered as a result of the lease it had entered into from Titan. There was also a third defendant in those proceedings, a Mr Webber, but he is not a party to the present proceedings in the Court of Appeal.

4.   The District Court proceedings were begun after the lease had come to an end. They related to some losses that Aquaqueen claimed had resulted from the way in which the leasehold tenancy had operated. At the time Aquaqueen’s proceedings against Titan, Ms Wood-Weber and Mr Webber were begun, they had a file number of 2009/00004600. Later, possibly as a result of computerisation of the court’s records, they were given a file number of 2009/00337626. I will refer to those proceedings as the 2009 Proceedings.

5.   On 6 June 2011 his Honour Judge Williams delivered some reasons for judgment dismissing the plaintiff’s claim in the 2009 Proceedings and ordering the plaintiff, Aquaqueen, to pay the costs of the defendants. On 24 June 2011 his Honour made costs orders in the 2009 Proceedings against Aquaqueen and Ms Penson jointly and severally. He also ordered those costs be paid on an indemnity basis from a date in February 2010. That date was a date on which the defendants had made an offer of compromise to Aquaqueen. Williams J also made some other costs orders that are not presently material.

6.   There has been no appeal against the substantive orders made in the 2009 Proceedings nor against any of his Honour’s costs orders in those proceedings. However, after the costs payable concerning the 2009 Proceedings had been assessed, there was an appeal to a costs review panel concerning the quantum of the assessed costs. That appeal was dismissed.

7.   District Court Proceedings numbered 2014/00017976 were proceedings that appealed against the decision of the costs review panel. I will refer to those proceedings as the Costs Appeal Proceedings.

8.   There is also a third set of proceedings in the District Court that are numbered 2014/00137439. They are a set of proceedings that recorded a judgment for the amount of costs found to be due after the costs assessment process had completed. Uniform Civil Procedure Rules (UCPR) r 36.10 permits a costs assessor’s certificate to be filed either in the proceedings to which it refers or in fresh proceedings, whereupon judgment is entered for the amount stated in the certificate. It was the latter course that was taken in the present case. I will refer to the proceedings giving judgment for the amount of the certificate of the costs review panel as the Costs Judgment Proceedings.

9.   While that is a general outline of the nature of the proceedings in the court below, the present proceedings can only be understood by looking in a little more detail at what happened in the District Court. On 2 September 2013 an assessment certificate was issued for costs in the sum of $111,416.95. The cost of the assessment in the sum of $1,787.04 was ordered against Aquaqueen and Ms Penson. The certificate quantifying the costs bears a note that it was sent on 1 October 2013.

10.   On 31 October 2013 Aquaqueen and Ms Penson applied to the District Court for a review of that costs certificate.

11.   On 5 December 2013 Titan and Ms Wood-Weber obtained a judgment based on the assessment certificate that had been issued on 2 September 2013.

12.   On 11 December 2013 the Costs Review Panel affirmed the costs assessment of 2 September 2013 and a certificate of determination of the costs assessment issued on 2 September 2013.

13. On 20 January 2014 Aquaqueen and Ms Penson filed a summons commencing the Costs Appeal Proceedings. The defendants were Titan, Ms Wood-Weber and the three lawyers who had conducted the original cost assessment and the costs review process. That summons instituted an appeal pursuant to ss 384 or 385 of the Legal Profession Act 2004 against the whole of the decision of the Costs Review Panel.

14.   On 28 March 2014 Ms Penson filed an amended notice of motion in the 2009 Proceedings seeking to set aside the costs judgment that had been obtained on 5 December 2013. That judgment had been premature, because it was based upon a certificate of assessment concerning which a review had been instituted. However, because the review affirmed the original assessment, the substance of the judgment of 5 December was correct.

15.   On 22 April 2014 an amended summons was filed in the Costs Appeal Proceedings.

16.   On 1 May 2014 her Honour Judge Truss dealt with a notice of motion in the 2009 Proceedings. With the consent of Titan and Ms Wood-Weber the court ordered that the judgment that had been obtained on 5 December 2013 be set aside. There was an order that the original assessment certificate, and the determination of the costs assessor concerning it, be removed from the document that had been filed by the first and second defendants on 5 December and returned forthwith to the solicitors for Titan and Ms Wood-Weber. The notice of motion was dismissed. The plaintiffs, that is Aquaqueen and Ms Penson, were ordered to pay the defendants’ costs of the motion on and from 7 April 2014 up to 1 May 2014 on a party and party basis.

17. On 1 May 2014 Truss J also dealt with an application that had been filed in the Costs Appeal Proceedings. She gave some directions concerning the Costs Appeal Proceedings and ordered that they be listed for hearing on 7 May 2014. Ms Penson was allowed to appear for the company on that occasion. The court foreshadowed that leave would not be granted on the next occasion to represent the company unless the requirements of UCPR 7.2 were satisfied. From the fact that Ms Penson did continue to represent the company later in the District Court I would infer that those requirements were indeed satisfied.

18.   It is the judgment of Truss J on 1 May 2014 that is the first of the decisions against which Ms Penson seeks leave to appeal.

19.   On 7 May 2014 there were two relevant events. First of all an order was recorded in the Costs Judgment Proceedings giving a judgment for Titan and Ms Wood-Weber against Aquaqueen and Ms Penson in the sum of $113,203.99. That was the total of the amount of the assessed costs, together with the costs of the costs assessment.

20.   Also on 7 May 2014 her Honour Judge Truss determined an application that Titan and Ms Wood-Weber had made for security for costs in the Costs Appeal Proceedings. There was an order that an amount of $20,000 be paid into court.

21.   The notice of motion that was before the court on that day was one that sought a variety of orders. Not all the orders sought in the notice of motion were pressed. In particular, prayers for relief seeking an order that the summons commencing the Costs Appeal Proceedings be summarily dismissed, and that Ms Penson and Aquaqueen pay the costs of Titan and Ms Wood‑Weber of the Costs Appeal Proceedings were not pressed. Likewise, an alternative order that Aquaqueen and Ms Penson pay into court the amount of the assessed costs and the amount of the costs assessor’s cost was not pressed.

22.   The order of Judge Truss of 7 May 2014 is the second of the orders against which leave to appeal is sought.

23.   On 22 May 2014 a notice of motion was filed in the Costs Judgment Proceedings. It sought to stay the judgment that had been entered on 7 May.

24.   On 23 May 2014 a further amended summons was filed in the Costs Appeal Proceedings. By that time Aquaqueen and Ms Penson had Ms Castle acting as counsel for them. The further amended summons radically changed the grounds of appeal that were proposed to be relied upon. This further amended summons was signed by Ms Castle as counsel, whereas the previous summonses in the Cost Appeal Proceedings had been signed by Ms Penson acting for herself and on behalf of Aquaqueen. The only ground of appeal that the further amended summons sought to press was that the review panel had been in error in determining that the costs ordered in four particular interlocutory proceedings should be paid on an indemnity basis rather than on a party-party basis.

25.   On 30 May 2014 her Honour Judge Gibson delivered judgment in the Costs Appeal Proceedings. She noted that the only grounds of appeal related to the difference between indemnity and party-party costs concerning the four interlocutory decisions and estimated that that difference was at most a sum of a little less than $2,100. She dismissed the summons and ordered the plaintiffs to pay the costs of the defendants. Ms Penson does not seek to appeal against Judge Gibson’s decision of 30 May 2014.

26.   On 25 July 2014 a notice of motion was filed in the Costs Appeal Proceedings by Titan National and Ms Wood-Weber seeking, in broad terms, an order that the costs order of Gibson J made on 30 May be on an indemnity basis, that costs thrown away by reason of the further amended summons be on an indemnity basis, and that all cost orders in the proceedings take the form of lump sum cost orders.

27.   On 1 August 2014 the notice of motion of 25 July 2014 in the Costs Appeal Proceedings was listed before her Honour Judge Balla. At the hearing on that day Ms Penson and Aquaqueen filed in court an amended notice of motion, this time in the Costs Judgment Proceedings, seeking a stay and mediation. Balla J dismissed that notice of motion, with an order for indemnity costs against Ms Penson and Aquaqueen. The application for costs to be paid by way of a fixed cost order was stood over to be before Judge Gibson, on 8 August 2014. The decision of 1 August 2014 is the third of the decisions concerning which Ms Penson seeks leave to appeal.

28.   On 8 August 2014 all three of the proceedings that were then current in the District Court were listed before Judge Gibson. Ms Penson sought and was granted an adjournment. Directions for the further hearing of the notice of motion were given, costs were reserved and the Judge noted that if a lump sum order were to be made for the costs of that day it would be $1,000 for all three matters.

29.   On 19 August 2014 all three matters came before Gibson J. In particular, the notice of motion that was filed in the Costs Appeal Proceedings on 25 July 2014 came on for hearing. Ms Penson was not present on that day. She had emailed the Judge’s associate seeking a fortnight’s adjournment, but the Judge declined to grant the adjournment. The Judge made different orders in the three different sets of proceedings. In the 2009 Proceedings she not only refused the adjournment with costs but she also dismissed a notice of motion that Ms Penson and Aquaqueen had filed on 15 May 2014. That notice of motion was one that sought orders to stay or set aside the judgment and orders made on 1 May, to strike out any defence filed by Titan and Ms Wood-Weber in the 2009 Proceedings, to disallow all the evidence of Titan and Ms Wood-Weber, to hear an amended notice of motion that the plaintiffs had filed on 28 March 2014 (which, I interpolate, sought a stay of the costs judgment obtained by the first and second defendants on 5 December 2013 and an order setting aside or reversing all enforcement actions relating to the costs judgment that had been given on 5 December 2013 and an “order for costs including disbursement and court filing fees payable to [Aquaqueen] by the first and second defendants upon presentation of an itemised bill not subject to the costs assessment.”)

30.   Other orders that Judge Gibson made on 19 August 2014 in the 2009 Proceedings were that the plaintiffs were to pay the costs of the costs appeal and subsequent applications including notices of motion in all three sets of proceedings on an indemnity basis. She ordered that the plaintiffs pay the first and second defendants costs of the appeal and the proceedings before Balla J in a total gross fixed sum of $77,747.78 giving the plaintiffs credit for $20,000 security for costs making a judgment sum of $57,747.78. She also made some orders for interests on costs, and other orders of a more mechanical kind.

31.   The orders that Judge Gibson made on that day in the Costs Judgment Proceedings included an order that the notice of motion filed in the Costs Judgment Proceedings on 22 May be dismissed. (That notice of motion had sought to stay the judgment that had been entered on 7 May 2014). The notice of motion that had been filed on 1 August 2014 seeking a stay and mediation was dismissed. There was an order that any costs payable by Aquaqueen and/or Ms Penson were to be paid in accordance with Gibson J’s judgment of 19 August in the 2009 Proceedings or Balla J’s judgment of 1 August 2014. There was also an order that any application by Aquaqueen or Ms Penson for costs from the plaintiff was dismissed.

32.   In the Costs Appeal Proceedings on 19 August Gibson J made orders dismissing certain notices of motion of 4 April, 7 May and 25 July. She ordered that any costs payable by the plaintiffs were to be paid in accordance with her Honour’s judgment of 19 August 2014 or Judge Balla’s judgment of 1 August 2014. She dismissed any application by the plaintiffs for costs from the defendants.

33.   It will be observed that one of the orders made on 19 August 2014 was a lump sum order which quantified the order for costs that had been made in the Costs Appeal Proceedings on 30 May 2014, which Ms Penson had not sought to appeal against. However, the judgment of 19 August 2014 is the fourth of the judgments against which Ms Penson seeks to appeal.

34.   On 25 August 2014 a notice of motion was filed in each of the 2009 Proceedings, the Costs Appeal Proceedings and the Cost Judgment Proceedings. The orders that it sought were:

(1)   A stay of the orders that had been made on 19 August;

(2) That the orders made on 19 August 2014 be set aside or varied under UCPR 36.16;

(3)    That the notices of motion filed on 15 May, 22 May and 1 August 2014 in the 2009 Proceedings and the Costs Judgment Proceedings, and the defendant’s remaining notice of motion filed on 4 April in the costs assessment proceedings be heard.”

The notice of motion also sought costs and any other orders the court saw fit. That notice of motion was listed for hearing on 26 September 2014.

35.   Ms Penson asked for the return date of the notice of motion to be changed because it was inconvenient to her. The return date was then altered to 5 October 2014. The hearing was then adjourned to 9 October 2014. On 26 September 2014, Ms Penson advised the respondents and the court that she had to travel overseas for business on Friday 3 October 2014 for approximately a week. She supported her need to travel overseas by an email in the Chinese language which in the material which she supplied to the court was translated only by Ms Penson. The judge’s associate happened to understand the Chinese language, and supplied the judge with a translation which differed from Ms Penson’s, and which did not reveal any urgency requiring Ms Penson to travel to China. More importantly than this, before her departure Ms Penson was provided with a copy of the decision of the Court of Appeal in Roskott v Commonwealth Bank of Australia [1] which sets out the sort of material the court usually requires before it will adjourn a hearing on the basis of the asserted inability of an applicant to be present.

36.   On 9 October 2014, Ms Penson’s notice of motion of 25 August 2014 was listed for hearing. Ms Penson was not present. Evidence of the type identified in Roskott had not been filed. Judge Gibson dismissed the notice of motion and ordered Aquaqueen and Ms Penson to pay the costs of Titan and Ms Wood-Weber on an indemnity basis in the lump sum of $5,700. This is the fifth of the decisions against which Ms Penson seeks leave to appeal.

37. On 20 October 2014, Aquaqueen and Ms Penson filed a notice of motion in the Costs Judgment Proceedings (and only in the Costs Judgment Proceedings) seeking a stay of the orders made on 9 October 2014, an order pursuant to rule UCPR 36.16 setting aside “the judgment orders made on 9 October 2014”, and an order that the court hear the previously pending notices of motion that had been listed in the notice of motion filed on 25 August 2014.

38.   On 20 November 2014 there was an order in the Supreme Court that Aquaqueen be wound up. That order was stayed for 14 days, and there were some extensions of that stay on later occasions.

39.   On 21 November 2014, Judge Gibson heard the notice of motion that had been filed on 20 October 2014. Judge Gibson dismissed the motion and ordered Aquaqueen and Ms Penson to pay the costs as a lump sum of $2,000. This is the sixth of the decisions against which Ms Penson seeks leave to appeal.

40.   On 11 February 2015, the winding-up order in relation to Aquaqueen became effective, when McColl JA refused to extend a stay of the winding-up order.

41.   On 23 February 2015, a summons was filed in the Court of Appeal, by Ms Penson alone, seeking leave to appeal against five judgments, said to be of Judge Gibson, given over the period 1 May 2014 to 21 November 2014. That summons was amended on 13 April 2015, to make clear that the leave was sought concerning the six judgments that I have earlier identified.

42.   On 2 February 2015, Ms Penson was notified by the sheriff that three writs for the levy of property had been issued against her. In the 2009 Proceedings there was one writ for a little less than $60,000 and another for a little over $6,000. In the Costs Judgment Proceedings there was a writ for a little over $127,000. Thus the total amount of the writs is a little more than $200,000. Post judgment interest will undoubtedly be accruing on the amounts.

5. In paragraph [42] of JC Campbell AJA's reasons, his Honour refers to the issue of writs for the levy of property. I shall return to the fate of those writs later in these reasons.

6. To appreciate the full complexity of the history of these and related proceedings, it is also necessary to note the extraordinary number of applications which Ms Penson has made. These are summarised in Schedule 1 to these reasons.

7. Given the outcomes of those applications, the Court is satisfied that if not all, then nearly all, of those applications were baseless and made with the intention of delaying the inevitable in so far as the plaintiffs have been seeking to enforce the various costs orders which they have against Ms Penson, the origins of which are explained in the judgment of JC Campbell AJA set out in paragraph [4] above.

8. There can be no dispute that the plaintiffs are now the beneficiaries of the costs orders that have the effect of judgments either by reason of the issue of certificates of assessment or because they are the product of lump sum costs orders assessed in accordance with s 98(4)(c) of the Civil Procedure Act 2005 (NSW) (the “CPA”).

9. Ms Penson’s most recent appeals were heard and dismissed with costs by the Court of Appeal on 16 December 2015: Penson v Titan National Pty Ltd [2015] NSWCA 404; Penson v Titan National Pty Ltd (No 2) [2015] NSWCA 403; Penson v Titan National Pty Ltd (No 5) [2015] NSWCA 405.

10. To the judgments referred to in paragraph [8] above may be added what have been referred to before me as recovery costs.

11. Finally, to the judgments and recovery costs set out in paragraphs [8] and [10] above there should also be added a lump sum costs order which I made last week for $2,000 plus GST against Ms Penson in favour of the plaintiffs. In these reasons, a reference to the "judgments" is to all the matters referred to in this paragraph and paragraphs [8] and [10] above. These are all set out in Schedule 2 to these reasons. With the exception of the lump sum costs order which I made, Ms Penson has no further recourse whether by way of appeal or otherwise against the judgments. Interest is running or will run on them depending on matters it is unnecessary to detail in these reasons.

12. On 24 November 2015 Rein J made an ex parte asset preservation order over the Property. Ms Penson is the registered proprietor. These reasons should be read with his Honour's judgment of that date. In so far as any matter going to the continuing need for an asset preservation order is concerned, nothing has changed since then other than I have now had the opportunity over several appearances to observe Ms Penson's conduct before me. That has only confirmed the truth of Rein J's observation in paragraph [14] of his unpublished reasons of that date that Ms Penson is “determined and tenacious in resisting the payment of any costs which she has been ordered to pay”.

13. The reason why Rein J's order was made ex parte related to difficulties of serving Ms Penson. The asset freezing order was subsequently extended up to and including 30 March 2016. Mr Barham of Counsel, who appeared for the plaintiffs, informed me that date was selected to allow the matters that Ms Penson then had before the Court of Appeal to be resolved. That has now occurred (see paragraph [9] above).

14. The matter came before me in the Duty List on 29 March 2016 for the extension of the order originally made by Rein J. The interlocutory process on which the plaintiffs now move had originally been made returnable on 4 April 2016. Mr Barham informs me that the return date was altered in the Registry to accommodate the fact that Rein J's order was to expire on 30 March 2016.

15. When the matter came before me in the Duty List on 29 March 2016, Ms Penson appeared. She informed the Court that she wished to resist the extension of the asset freezing order and resist the appointment of a receiver over the Property. She sought an adjournment. Given the history of the matter (for which see paragraphs [4], [6] and [9] above), I took the view that the plaintiffs were entitled to have their application heard as soon as possible, consistently with affording Ms Penson a fair opportunity to prepare to meet the application. I made orders fixing the hearing of the interlocutory process for 7 April 2016 including:

1.   The asset freezing order made by Justice Rein on 24 November 2015 and subsequently extended up to and including 30 March 2016 be and is hereby extended again up to and including 7 April 2016.

2.   The applicants by their solicitors are to make available for collection from the reception desk of their solicitors a copy of all material upon which the applicants propose to rely in support of their interlocutory process filed 18 March 2016, such material to be marked for the attention of Ms Penson and to be available from the reception desk of their solicitors for collection from 1.30pm today.

3.   Direct that Ms Penson either by herself or by her agent such as a courier collect the material referred to in the preceding order at any time after 1.30pm during business hours today from the reception desk of the applicants’ solicitors.

4.   Any affidavits or other material upon which Ms Penson proposes to rely at the hearing of the applicants’ interlocutory process is to be served and filed by delivery to the associate to Kunc J on or before 5 April 2016.

5.   Any material in reply from the applicants is to be served and filed by delivery to the associate to Kunc J on or before 5.00pm on 6 April 2016. Service upon Ms Penson is to be effected by Ms Penson by herself or her agent such as a courier collecting any such material in reply from the applicants’ solicitors at or about 5.00pm on 6 April 2016.

6.   The applicants’ interlocutory process filed 18 March 2016 is fixed for hearing before the Duty Judge at 10.00am on 7 April 2016.

16. Notwithstanding that I had made those orders, Ms Penson exercised her penchant for filing applications by filing a further interlocutory process in the Corporations List on 5 April 2016 that was returnable before the Corporations Judge on 13 April 2016. When one examines the relief that she sought in that interlocutory process, including that the hearing of 7 April 2016 before me be vacated, it is clear that the only purpose behind her filing that interlocutory process was to seek to vacate the hearing which I had fixed.

17. That further interlocutory process returnable on 13 April 2016 came to my attention through the ordinary administrative processes of the Court. When the hearing before me resumed on 7 April 2016 I made that interlocutory process also returnable before me instanter on the basis that it did nothing more than give formal existence to the application Ms Penson renewed on 7 April 2016 for an adjournment.

18. Again given the history of the matter, I declined Ms Penson's application for an adjournment at the outset of the hearing on 7 April 2016 but informed her that she could, if she wished, renew her application at the close of the plaintiffs' case. I did so because it seemed to me to be sensible, in terms of assessing whether or not she should be granted an adjournment and for how long that adjournment might be, if both she and the Court had heard the totality of the plaintiffs' case on their application.

19. The application continued into the next day, 8 April 2016. At the close of the plaintiffs' case I acceded to Ms Penson's application that the proceedings be further adjourned to today (20 April 2016). That was in order to give her every opportunity to prepare to meet the case which the plaintiffs had advanced. I made orders including:

1.   The asset freezing order originally made by Justice Rein on 24 November 2015 and subsequently extended by Kunc J is further extended up to and including Wednesday 20 April 2016.

2.   The respondent is to serve and file by delivery to my associate any affidavit evidence upon which she proposed to rely together with an outline of submissions by 10.00am on Monday 18 April 2016.

3.   Leave is granted to the respondent to issue subpoenas to Trent Andrew Devine and Frank Hoare such subpoenas to be taken out and served on the solicitors for the applicants on or before 12 April 2016.

4.   The subpoenas referred to in order 3 are to returnable before Kunc J at 9.30am on Friday 15 April 2016.

5.   The proceedings are stood over for further hearing at 10.00am on Wednesday 20 April 2016.

20. In accordance with orders 3 and 4 set out in the preceding paragraph, the matter was before me last Friday in relation to the subpoenas which Ms Penson had been given leave to issue. Those subpoenas gave rise to a further judgment: In the matter of Aquaqueen International Pty Limited [2016] NSWSC 453.

21. At the end of that judgment I made orders that, if she wished to press for compliance with the two subpoenas that were the subject of those orders, Ms Penson should provide security in advance for compliance with those subpoenas:

[17] The Court's orders are:

(1) In relation to the subpoena addressed to Mr Devine, Ms Penson is to provide security in the amount of $1,300 to be paid into the trust account of Pure Legal and to be held by that firm pending further order of the Court or agreement between the parties as to Mr Devine's reasonable costs of compliance.

(2) In relation to the subpoena addressed to Mr Hoare, Ms Penson is to provide security in the amount of $1,000 to be paid into the trust account of Pure Legal and to be held by that firm pending further order of the Court or agreement between the parties as to Mr Hoare's reasonable costs of compliance.

(3) The subpoenas are stood over for further production to before me at 9.30am next Wednesday 20 April 2016 provided that no production will be required if the security amounts referred to in Orders 1 and 2 have not been paid.

22. Ms Penson has failed to provide that security. Her failure to do is another matter I take into account in coming to the view that I have formed that Ms Penson is reluctant to pay anything in connection with these proceedings.

23. Out of time having regard to the directions I made on 8 April, Ms Penson filed on 19 April 2016 an affidavit for the purposes of these proceedings affirmed on that day.

Ms Penson’s adjournment application

24. At 9 am this morning Ms Penson contacted my associate and told her that she (Ms Penson) was unwell and would not be attending Court today. My associate informed her that if she wished to make an adjournment application, I would deal with that application in open court with her attending by telephone. My associate also informed her that if she did not participate by telephone in the hearing of her adjournment application, it was possible that orders would be made against her today in her absence.

25. The hearing began before me at about 9.45 am and telephone contact was made with Ms Penson. I am satisfied that, at that time, she was outside a doctor's surgery. The matter proceeded a little informally in so far as Ms Penson, without being sworn, informed me of her situation. Furthermore, on the suggestion of Mr Barham, Ms Penson's mobile phone was passed to a receptionist at the doctor's surgery who at least confirmed where Ms Penson was and that Ms Penson had told her that she (Ms Penson) was sick and wished to see a doctor. The receptionist also confirmed that the surgery had been open from 8 am but Ms Penson had only arrived at the surgery shortly before the time of the telephone conversation during the hearing. The Court infers that Ms Penson did not reach the doctor's surgery until at least 9.30 am.

26. Ms Penson applied for an adjournment on the basis that she was unwell and unable to come to Court. I stood the matter over to 11 am to see if Ms Penson could, in the meantime, see a doctor and provide a medical certificate.

27. The hearing resumed at 11 am when telephone contact was again made with Ms Penson. She informed me that she had still not seen a doctor and said that she was very stressed and unwell and was unable to proceed with the matter today. She rang off.

28. The plaintiffs opposed Ms Penson's adjournment application, which continued in Ms Penson's absence. There were three reasons advanced opposing the application.

29. First, it was submitted that there was no evidence that she was too ill to come to Court except her own.

30. Second, any adjournment was useless because there was no suggestion that Ms Penson could say anything that would prevent the orders sought by the plaintiff being made. In particular, attention was drawn to Ms Penson's late filed affidavit, none of the contents of which could be said to assist any case that she might have made to resist the orders being sought today.

31. Third, it was submitted that Ms Penson had had plenty of chances on earlier occasions including in relation to the present application. The plaintiffs' solicitor gave evidence in the witness box of the history of Ms Penson seeking adjournments at various times, although it was accepted that this was the first time that she had relied on a claim of illness.

32. I decided to continue the hearing and reject Ms Penson's adjournment application. I accept, as was submitted by Mr Barham, that a decision in relation to an adjournment must be undertaken in accordance with the dictates of justice and to achieve the overriding purpose under the CPA:

56 Overriding purpose

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule…

…

58 Court to follow dictates of justice

(1) In deciding:

(a) whether to make any order or direction for the management of proceedings, including:

(i) any order for the amendment of a document, and

(ii) any order granting an adjournment or stay of proceedings and

(iii) any other order of a procedural nature, and

(iv) any direction under Division 2, and

(b) the terms in which any such order or direction is to be made,

The court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court:

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant:

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

33. There were three reasons why I refused the adjournment.

34. First, having heard Ms Penson on the phone, I was not satisfied that there was evidence that Ms Penson was so sick that she could not have come to Court or that the Court could not have properly accommodated any indisposition from which she was suffering. I regarded it as significant that she had not gone immediately to the doctor’s surgery at 8 am when it opened. It seems to me that she could have done so and explained to the receptionist why she urgently required a medical certificate.

35. Second, I accept Mr Barham's submission that an adjournment would have had no utility, given the strength of the plaintiffs' case for the relief which they seek. I have reviewed Ms Penson's affidavit affirmed 19 April 2016. I am unable to see anything in it that could have been the foundation for even a remotely arguable submission that the plaintiffs were not entitled to enforce the judgments.

36. Third, consistently with the need to deal with matters justly, quickly and cheaply, I formed the view that the history of delays in this matter really needed to come to an end. In terms of any disadvantage or injustice to Ms Penson, I was also mindful that, as I will in fact do, even if I were to appoint a receiver I would have stayed the order to enable Ms Penson to make such application as she wished to the Court of Appeal. In circumstances where I was not satisfied that the adjournment would have any utility because of the strength of the plaintiffs' case, there was nothing to be achieved by adjourning the matter for, say, a week in the hope that Ms Penson would appear on the next occasion. I would either appoint a receiver and stay the order today or do so in a few days' time. So understood, there was no real prejudice to Ms Penson, as opposed to the further delay and costs of an additional appearance that would be visited on the plaintiffs.

37. The foregoing are the reasons why I declined Ms Penson's adjournment application. For completeness, I record that at 2.20 pm, shortly before I returned to this matter in order to deliver these reasons, Ms Penson sent an email to my associate attaching a doctor's certificate. That doctor's certificate stated:

This is to certify that on: 20/4/16

I have examined:

Shirley Penson XXXX

XXXX

In my opinion, she is suffering from: Enteritis and will be unfit for her normal work from 20/4/16 to 22/4/16 inclusive.

Other comments (if necessary): If feeling better on 22/4/16, can return to work.

Signed: Dr Anthony Stanley

38. To the extent it may be relevant, even if that doctor's certificate had been available to me this morning, I would not have adjourned the matter because of the matters set out in paragraphs [35] and [36] above and I would still not have been satisfied that she was sufficiently unwell that she could not have attended Court today or that arrangements could not have been made by the Court to deal with the indisposition from which she said she was suffering.

The plaintiffs’ application

39. I turn now to the substantive application.

40. The principles in relation to equitable execution of the Court's judgments were set out by Ball J in Hall v Foster [2012] NSWSC 974:

16. Finally, the Court has an inherent equitable jurisdiction to enforce judgments, which is often referred to as "equitable execution". As Bryson J explained in DM & BP Wiskich Pty Ltd v Joseph Saadi (Supreme Court of NSW, Bryson J, 16 February 1996, unreported) at pp 4-5:

Before the Judicature reforms equitable remedies were from time to time given to enable judgments to be enforced in circumstances where the remedies available under the common law were inadequate. In the complex and technical history of the law relating to execution, a number of valuable interests could not be the subject of execution under common law process. Many of the difficulties were overcome by legislation ... However equitable execution continues to be possible, and while quite uncommon, from time to time orders are made appropriating funds in Court or otherwise under the control of the Court to the satisfaction of judgments without the intervention of any writ for levy of property or other formal execution process.

17. This inherent jurisdiction includes a power to appoint a receiver. As Waddell J said in Corporate Affairs Commission v Smithson [1984] 3 NSWLR 547 at 552:

[R]eceivers may be appointed ... under the inherent jurisdiction, for the purpose of equitable execution where the appointment may be made to enable a judgment creditor to obtain payment out of property which cannot be reached by legal execution.

18. It is unclear whether the inherent power to appoint a receiver should be seen as being embodied in s 67 of the Supreme Court Act 1970 (NSW) or whether s 67 should be seen as conferring an additional power. That section provides:

The Court may, at any stage of proceedings, on terms, appoint a receiver by interlocutory order in any case in which it appears to the Court to be just or convenient so to do.

19. In DM and BP Wiskich, Bryson J appears to have regarded the power to appoint a receiver for the purposes of equitable execution as being governed by s 67: at p 5. However, in my opinion, s 67 should be seen as conferring a separate power. The wording of s 67 suggests that it is concerned with the interim preservation of the subject matter of the litigation pending a final resolution of the proceedings, not with the appointment of a receiver as a final order to give effect to a judgment that has been delivered. A Court should only grant equitable execution where the legal remedies available are inadequate.

41. I respectfully agree with and adopt his Honour's reasons.

42. It will be apparent from those reasons that in order to obtain the relief which the plaintiffs seek, they must satisfy the Court that the legal remedies available to them for execution are inadequate.

43. By reason of the following uncontradicted evidence from Ms C Perry, the plaintiffs' solicitor, I am satisfied that the legal means for execution of the judgments are inadequate:

Charge of Property

17. I have endeavoured to place a charge on the Property. In this regard on 19 August 2015 I filed a Notice of Motion in the District Court of New South Wales a copy of which is exhibited at CLP – 4 pages 142 to 145. At the time of filing I attended before the Duty Judge to discuss the application and its listing. The duty judge said to me:

“I have an inclination that you can’t use the charge for property but am not sure.”

18. Upon my return to my office I undertook further research and located the case of Paul Michael Pty Ltd (subject to Deed of Company Arrangement) v Urban Traders Pty Limited [2010] NSWSC 1246 based upon which I understood the court could not order a charge over real estate. I immediately took steps to notify the court of this decision and sought to discontinue the application for a charge over the Property. Exhibited at CLP-4 pages 146 to 147 is a copy of my facsimile to the District Court Registry.

Garnishee Orders

19. I am unable to issue garnishee orders as both myself and my client do not have any details of any employer, third party creditor or bank account pertaining to Ms Penson. Ms Penson has resisted all applications to produce banking records and provides payments by way of example for subpoena conduct money by postal money orders.

Writs of Possession

20. Further to paragraphs 30(II), 108 and pages 549 to 554 of Exhibit CLP-3 of my First Affidavit, I am unable to obtain a Writ against land in respect to the Property until the Sheriff first serves Ms Penson at the Property with a Writ of Levy concerning personal property. I have made at least 5 applications for Writs which have been forwarded to the Sherriff’s office for service. I have telephoned the Sherriff’s office more than a dozen times to following up the Writs. Notwithstanding all endeavours to date, the Sheriff has been unable to effect service on any of the numerous Writs I have sought to be issued. I have caused the Writs to be reissued and have also attempted to have the Sherriff serve the Writs outside of usual hours as I am unformed by the Sherriff’s office and verily believe that the Sheriff generally only carried out service activities between 9:00am and 5:0pm Monday to Friday. I have also paid additional fees for reattempts of service of the Writs, all of which have been unsuccessful. Exhibit at CLP-4 pages 148 to 184 are copies of returned Writs and my letter to the Sherriff’s office seeking service outside of usual hours. An officer of the Sherriff’s office during one of my inquiries said to me:

“There is not much more we can do. We have attempted to telephone her and leave messages in her letter box but she doesn’t respond. The Writ must be served at the property address.”

21. Until the Writs have been served and successfully executed against personal property, the Writ for the Property which would enable a sale by the Sherriff cannot be issued or registered on the title.

Bankruptcy

22. On 29 September 2015 I caused to be served upon Ms Penson a Bankruptcy Notice a copy of which is exhibited at CLP-4 pages 185 to 189. In accordance with rule 16.01 of the Bankruptcy Regulations 1996 I served the Bankruptcy Notice by email. The email from my office computer was rejected. The email from my home computer did not receive any rejection email. No payment was made in respect to such bankruptcy notice. I subsequently tried to again use my home computer to communicate with Ms Penson but after he first email, those emails also bounced back.

23.   In my presence in Court Ms Penson has denied service of the Bankruptcy Notice. Given the history of denial of service over the past six (6) tears including as set out below, the inability to communicate with Ms Penson by email and to effect personal service upon her, I have formed the opinion that I am unable to effect service of a Creditor’s Petition by either substituted or personal service upon Ms Penson.

44. One of the matters to which Ms Perry refers in the evidence which I have quoted in the preceding paragraph, is the difficulty that has been encountered throughout the course of these proceedings with serving Ms Penson. In so far as the difficulties of serving her are concerned, despite her protestations to the contrary before me, I am satisfied that she does and is likely to do everything she can to make it difficult for her to be served. Even in the short history of the matter before me, there have been real difficulties in serving her with documents. One matter I take into account in drawing that conclusion, if I had any doubt, appears from the disclaimer in Ms Penson's emails which are in evidence before me. That disclaimer is suggestive of an experienced litigant in person, who seeks to take advantage of that status by making themselves hard to serve:

DISCLAIMER/CONDITIONS:  By communicating via this email address, you acknowledge that you have read and accepted the following conditions:

(1) This mail box is not monitored by office support and is accessed on need basis only as often as possible.   In case of an urgent matter, you may contact the account holder by telephone.  

(2) Pursuant to UCPR rule 3.7, the account holder does not consent to receiving Electronic Service of a document, and emails of this nature will be deleted as not being read 

(3) This email account has a box size limitation and sending of large files is prohibited. 

45. The difficulty with service is another matter I take into account in reaching the conclusion that the legal means of execution are inadequate.

46. For these reasons, I am satisfied that it is appropriate to appoint a receiver to the Property to enable the plaintiffs to enforce the judgments which they have obtained. There is some evidence as to the value of the Property and the amount owing to the mortgagee bank which supports the conclusion that there is utility in the order because Ms Penson still has equity in the Property.

47. As I indicated in paragraph [12] above, I am also satisfied that those matters which moved Rein J to make the original asset freezing order continue to apply. Those considerations have been fortified by Ms Penson's conduct of seeking adjournments before me and the persistent difficulties with service. I am satisfied that the asset freezing order should continue up to and including a short period of time after the receiver's appointment has in fact taken effect.

48. I will dismiss Ms Penson’s interlocutory process referred to in paragraph [16] above. It should never have been filed.

49. I will hear Mr Barham as to the form of orders to be made.

    Schedule 1 - List of proceedings and Applications (30.7 KB, pdf)

    Schedule 2 - Aquaqueen - Judgment 20.4.16 (9.88 KB, pdf)
     

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Decision last updated: 18 May 2016