Knight v City of Bayswater

[2009] WADC 71

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   KNIGHT & ANOR -v- CITY OF BAYSWATER & ANOR [2009] WADC 71

CORAM:   REGISTRAR KINGSLEY

HEARD:   9 APRIL 2009

DELIVERED          :   18 MAY 2009

FILE NO/S:   CIV 3384 of 2002

BETWEEN:   GILLIAN GAIL KNIGHT

First Plaintiff

WILLIAM PETER KNIGHT
Second Plaintiff

AND

CITY OF BAYSWATER
First Defendant

WESTERN POWER CORPORATION
Second Defendant

Catchwords:

Practice - Application to set aside property (seizure and sale) order - Claim of interest on costs - Incipitur rule applied

Legislation:

Civil Judgments Enforcement Act 2004

Result:

Application dismissed

Representation:

Counsel:

First Plaintiff                  :     Mr S V Forbes

Second Plaintiff             :     Mr S V Forbes

First Defendant              :     Mr J Eller

Second Defendant         :     No appearance

Solicitors:

First Plaintiff                  :     S C Nigam & Co

Second Plaintiff             :     S C Nigam & Co

First Defendant              :     John Eller

Second Defendant         :     Not applicable

Case(s) referred to in judgment(s):

State Planning Commission v Della Vedova (1992) 7 WAR 81

Thorpe v Bristile Pty Ltd (1997) 80 FCR 330

1. REGISTRAR KINGSLEY:  On 6 March 2009 the plaintiff issued a property (seizure and sale) order against the defendant claiming interest on the taxed costs of $90,457.15 from 6 August 2008, the date of judgment in the action.

2. On 6 August 2008 pursuant to O 43 r 16 the plaintiffs' claim against the City of Bayswater was dismissed and there was an order that the City of Bayswater pay the plaintiffs' costs to be taxed.  The consent dismissal of the action came after the second day of the trial.

3. The plaintiff lodged a Bill of costs for taxation on 2 October 2008 and the Bill was listed before a Taxing Officer on 10 November 2008.  Mr Eller in his affidavit sworn 30 March 2009, deposes that the Taxing Officer adjourned the hearing on 10 November 2008 because he was not satisfied with certain details in the Bill regarding an expert's report, and additionally time had run out.  The plaintiff's costs were taxed in January 2009 and allowed in the sum of $90,457.15.  The plaintiffs' Bill originally claimed at $120,721.21.

4. The defendant, City of Bayswater, has brought an application for orders that the property (seizure and sale) order (PSSO) dated 6 March 2009 be set aside as irregular.  Mr Eller deposes that on 29 January 2009 the defendant remitted a bank cheque to the plaintiffs' solicitors in the sum of $90,457.15 in full and final satisfaction of the taxed costs.  Despite tender of the cheque the plaintiffs' solicitor sought fit to issue the PSSO against the City for interest on the $90,457.15 from 6 August 2008 until payment on 30 January 2009.

5. Mr Eller for the City submits that a PSSO pursuant to s 59 Civil Judgments Enforcement Act 2004 is grounded in a judgment debt.  A judgment debt is defined in s 3 of the Act as the unpaid amount of inter alia a judgment sum.  Judgment sum is then defined as the amount of money ordered to be paid under a monetary judgment, and a monetary judgment means a judgment or order of the Court that requires, or has the effect of requiring, a person to pay money.

6. Mr Eller submits that the consent dismissal of the action in August 2008 was not a monetary judgment and that the only monetary judgment is the allocatur signed by the Taxing Officer.

7. Order 66 r 57 provides that the costs allowed by the Taxing Officer on any interim or final certificate of taxation is deemed to be a judgment of the Court and shall be recoverable accordingly.  Thus Mr Eller submits that the PSSO is irregular as it seeks interest relating back to the date of judgment in August 2007.

8. Interest on the amount of costs awarded after taxation may be recoverable from the date on which the judgment awarding the costs is announced (called the incipitur rule) or from the date on which the Taxing Master signs the allocatur (called the allocatur rule).  There are arguments in favour of both rules, but in Western Australia the matter has been settled in favour of the incipitur rule.  In State Planning Commission v Della Vedova (1992) 7 WAR 81 (and followed in Thorpe v Bristile Pty Ltd (1997) 80 FCR 330), Walsh J determined that interest on costs ran from the day of judgment; that is, in Western Australia the incipitur rule prevails.

9. Accordingly I am of the opinion that the s 3 definition of monetary judgment, includes a judgment in the form of the Taxing Officer's certificate, and that judgment takes effect from the date of judgment when an order for costs has been made.

10. I note that the plaintiffs lodged their bill of costs in early October 2008.  It was open for the defendant to make a part‑payment of costs or to seek to negotiate the costs.  That may well have a bearing on when interest is to run to.

11. Further, there is an issue in relation to costs on the PSSO.  In Mr Eller's affidavit there is an intimation of a threat to institute enforcement proceedings by the plaintiff.  I am uninformed as to the course of correspondence by the plaintiff in relation to the payment of interest and at what point the defendant was informed there would be enforcement proceedings by way of a PSSO.

12. Accordingly to determine those two issues the defendant is to file and serve an affidavit, within 10 days, of delivery of these reasons, detailing whether any negotiations were entered into to settle the issue of interest on the costs, and the course of correspondence between the parties going to the issue of enforcement proceedings in relation to the outstanding interest.  The plaintiff may to respond to the defendant's affidavit within 7 days of service of the affidavit if necessary.  I will deal with the two issues on the papers, unless a party indicates they wish to be heard.