Kowalczuk v Accom Finance (No 2)

[2009] NSWCA 122

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Kowalczuk v Accom Finance (No 2) [2009] NSWCA 122

FILE NUMBER(S):
40514/07

HEARING DATE(S):
On papers in Chambers

JUDGMENT DATE:
28 May 2009

PARTIES:
Edward John Kowalczuk (First Appellant)
Mars Pty Limited (Second Appellant)
Accom Finance Pty Ltd (Respondent)

JUDGMENT OF:
Hodgson JA McColl JA Campbell JA   

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:

SOLICITORS:
Greg Mackey & Associates, Five Dock (Appellants)
Unrepresented (Respondent)

CATCHWORDS:
PROCEDURE - judgments and orders - amending, varying and setting aside - application to amend orders when respondent failed to comply with directions to determine amounts of interest - orders intended to be made by consent under section 46 Supreme Court Act 1970 - whether orders should be made by a single judge or the full court when solicitor for the respondent ceased acting - PROCEDURE - judgments and orders - application for removal of caveat - whether orders can be made without notice to or consent of the respondent - proper procedure for removal of caveat

LEGISLATION CITED:
Supreme Court Act 1970

CATEGORY:
Consequential orders

CASES CITED:
Kowalczuk v Accom Finance [2008] NSWCA 343

TEXTS CITED:

DECISION:
Orders made on 10 December 2008 varied.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40514/07

HODGSON JA
McCOLL JA
CAMPBELL JA

28 MAY 2009

EDWARD JOHN KOWALCZUK & ANOR v ACCOM FINANCE PTY LTD (No 2)

Judgment

1. THE COURT:  Judgment in this matter was delivered on 10 December 2008:  Kowalczuk v Accom Finance [2008] NSWCA 343.

2. Orders were made on 10 December 2008 as proposed in the judgment, namely:

   “1.So far as the appeal is brought against Dalla, the appeal is dismissed with costs.

   2.          So far as the appeal is brought against Accom:

   (a)Note the undertaking of Accom by its counsel to the Court that Accom will not enforce the Haberfield mortgage or the guarantee of Kowalczuk relating to the debt owed by Mars under the Haberfield mortgage for more than the lower rate fixed by that mortgage at simple interest, plus any costs it is entitled to, pursuant to that mortgage.

   (b)Upon that undertaking, allow the appeal to the extent that the orders in the court below are varied in the manner set out in order 3 hereof, and Accom will hereafter be ordered to pay

   (i)to Kowalczuk the sum of $18,143.17 plus interest at the prescribed court rates from 14 December 2005 to the date when that judgment is entered, and

   (ii)to Mars the sum of $20,761.84 plus interest at the prescribed court rates from 13 October 2006 to the date when that judgment is entered.

   (c)Direct the solicitors for the parties to confer concerning the amounts that shall be ordered pursuant to 2 (b) above, and to submit to the court within 28 days of the date of delivery of these reasons, agreed short minutes of order for the payment of those sums.

   (d)Reserve liberty to apply and further consideration concerning the quantum of those sums.

   (e)Order Accom to pay to Kowalczuk and Mars two-thirds of their costs of the appeal, insofar as those costs relate to the appeal they brought against Accom.

   (f)Otherwise, appeal dismissed. 

   3.Orders in the court below in 1887 of 2006 (the Equity Proceedings) are varied as follows:

   (a)        Orders 2-16 revoked. 

   (b)In lieu of order 2, order that the cross-claim against Dalla be dismissed.

   (c)        In lieu of orders 2–16,

   (i)         note that the Plaintiff will hereafter be ordered to make a payment to Kowalczuk in accordance with 2(b)(i) above, and reserve liberty to apply and further consideration concerning the quantum of that sum.

   (ii)order Kowalczuk to pay Dalla’s costs of the cross-claim.

   (iii)order that Kowalczuk and Accom each bear his or its own costs of the claim and cross-claim.

   4.Orders of the Court below in 5906 of 2006 (the Common Law Proceedings) made on 17 July 2007 revoked, and in lieu thereof order:

   (a)Note that the plaintiff will hereafter be ordered to make a payment to Mars in accordance with 2(b)(ii) above, and reserve liberty to apply and further consideration concerning the quantum of that sum.

   (b)order Mars to pay Dalla’s costs of the cross-claim.

   (c)order that Mars and Accom each bear its own costs of the claim and cross-claim.”

3. Those orders left outstanding a question of calculation of interest on two amounts that Accom was obliged to pay to Mr Kowalczuk, and Mars respectively. 

4. Though the orders directed the solicitors to confer about those amounts and submit agreed Short Minutes of Orders within 28 days, the solicitors did not adhere to that timetable.  Now, the solicitor for Accom has ceased acting, without having agreed on the interest calculation or the terms of any further orders.

5. To deal with that situation, the solicitor for Mr Kowalczuk has taken out a Notice of Motion seeking the making of orders that will include the amounts of interest.  It has been notified to Accom.  On the return date of the motion before the Registrar Accom did not appear.  That motion has been referred to us to dispose of in chambers.

6. The solicitor for Mr Kowalczuk has calculated interest that accrues to 4 May 2009, in a manner that we accept.  He asks that an order be made in terms that involve a complete replication of all the orders made on 10 December 2008 that did not relate to the payment of the two amounts to Mr Kowalczuk and Mars.

7. By now, the orders made on 10 December 2008 would have been recorded in the Court’s computerised record system, as so, pursuant to UCPR 36.11 those orders are taken to be entered. We are not inclined to remake orders that have already been made, when there is no need to do so.

8. In making the orders on 10 December 2008 we had originally envisaged that, once the solicitors had agreed on the calculations, an order would be made by a single judge in chambers, by consent, under section 46 Supreme Court Act1970.  Now that the solicitors for Accom have ceased acting, without having given any consent, it is prudent, and probably necessary, for all the judges who heard the appeal to be involved in making any supplementary orders.

9. For the reason we have earlier given, we are disinclined to make orders in the form sought by Mr Kowalczuk’s solicitor, when a simple variation of the orders already made will achieve in substance the same effect.  In circumstances where Accom’s solicitor was notified of the form of order sought by Mr Kowalczuk’s solicitor, and the form of order that we propose to make does not differ in substance, we do not see there as being any problem of natural justice in making the simpler orders that we propose to make.

10. Since filing his Notice of Motion, the solicitor for Mr Kowalczuk has also raised with the Registrar another problem.  Accom lodged a caveat on the title of the Berowra property, to support its claim that it had an equitable mortgage over the Berowra property.  At an interlocutory stage below, Windeyer J ordered that that caveat be extended until further order.  Mr Kowalczuk’s solicitor has only recently realised that the caveat is there, and seeks an order that it be removed, on the basis that “this issue is not contentious”.

11. It might be argued that it follows from our earlier decision that the caveat should be removed.  However in circumstances where there has not been notice to Accom, or consent from Accom to removal of the caveat, we refrain from expressing any view about the correctness of that argument.  Further, in circumstances where there has been neither notice to Accom, nor consent, of the proposal to remove the caveat, it is not appropriate for us to make an order for its removal.  If consent is not obtained from Accom (or whoever might from time to time be administering its affairs) to removal of the caveat, the proper procedure for Mr Kowalczuk to follow would be to take out a motion in the Equity Division seeking removal of the caveat.

12. We make the following orders:

1.          Vary the orders made on 10 December 2008

(a)in order 2(b) by deleting from “and Accom will hereafter be ordered to pay” to the end of order 2(b)(ii).

(b)        by substituting for the words and figures so deleted:

“and

(i)         judgment for Kowalczuk against Accom in the sum of $23,197.41, that judgment to take effect as at 4 May 2009, and

(ii)judgment for Mars Pty Ltd against Accom in the sum of $26,545.58, that judgment to take effect as at 4 May 2009.”

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LAST UPDATED:
29 May 2009