Litigation Fund WCX Pty Ltd v Homebuilding Pty Ltd

Case •

[2025] NSWCA 16

•

20 February 2025

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Litigation Fund WCX Pty Ltd v Homebuilding Pty Ltd [2025] NSWCA 16
Hearing dates: 21 November 2024
Date of orders: 20 February 2025
Decision date: 20 February 2025
Before: Ward P at [1]; Leeming JA at [59]; Basten AJA at [100]
Decision:

1.   Summons dismissed with costs.

2.   The Sheriff of New South Wales is to file any brief written submissions (not exceeding 3 pages) as to the form of the costs order within 7 days.

3.   Litigation Fund WCX Pty Limited is to file any brief written submissions (not exceeding 3 pages) as to the form of the costs order within 7 days thereafter.

4.   Any brief written submissions by the Sheriff of New South Wales in response thereto (not exceeding 1 page) are to be filed within 3 days thereafter.

5.   The form of the costs order will be determined on the papers.

Catchwords:

CIVIL PROCEDURE – Interpleader – Sheriff – whether interpleader required to be brought by Sheriff’s alternate – whether proceedings are one to which the Sheriff is a party for the purposes of s 6(1)(a) of the Sheriff Act 2005 (NSW) – whether contravention of s 6 of the Sheriff Act 2005 (NSW) requires mandatory dismissal of proceedings – Summons dismissed with costs

STATUTORY INTERPRETATION – Construction of s 6(1) of the Sheriff Act 2005 (NSW) – whether reference to “the Sheriff’s functions in relation to” refers to the function of commencing or maintaining legal proceedings to which the Sheriff is a party

Legislation Cited:

Australia Acts 1986 (Cth) and (UK)

Bankruptcy Act 1966 (Cth)

Charter of Justice 1823

Civil Procedure Act 2005 (NSW), Pt 8

Crown Proceedings Act 1988 (NSW), ss 4, 5

Home Building Act 1989 (NSW), s 48K

Interpretation Act 1987 (NSW), s 33

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7(5)

Justice Legislation Amendment Act 2019 (NSW), Sch 1, Item 1.20[1]

Legal Profession Uniform Law

Sheriff Act 1900 (NSW)

Sheriff Act 2005 (NSW), ss 3, 4, 5, 6, 7, 7A, 7B, 7C, 7D, 18

Sheriff and Court Security Amendment Act 2024 (NSW), Sch 1, Item 3

Sheriff Regulation 2021 (NSW)

Strata Schemes Management Act 1996 (NSW), s 80D

Supreme Court Rules 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), rr 7.1, 10.2, 36.16, 43.3, 43.4, 43.5, 43.6, 43.7, Pt 43

Workers Compensation Act 1987 (NSW), s 151C

Cases Cited:

2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409

Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32

Capello v Hammond & Simonds NSW Pty Ltd [2020] NSWSC 1021

Capello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57

Cappello v Homebuilding Pty Ltd [2024] NSWCA 88

Cardaci v Cardaci [2023] WASCA 158

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49

David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; [1995] HCA 43

Douglas v Daher (2009) 253 ALR 627; [2009] NSWCA 58

Ex parte Chung (1861) 2 Legge 1458

HBSY Pty Ltd v Lewis [2024] HCA 35

Homebuilding Pty Ltd v Cappello (No 3) [2024] NSWDC 407

JP Morgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Limited v Fletcher (2014) 85 NSWLR 644; [2014] NSWCA 31

Mangoola Coal Operations Pty Ltd v Muswellbrook Shire Council [2023] NSWCA 275

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

New South Wales Land and Housing Corporation v Navazi [2013] NSWCA 431

Nicholson v Nicholson [1974] 2 NSWLR 59

Pantorno v The Queen (1989) 166 CLR 466; [1989] HCA 18

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

Soia v Bennett (2014) 46 WAR 301; [2014] WASCA 27

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35

Tan v Owners Strata Plan 22014 (No 2) [2015] NSWSC 1920

Texts Cited:

J Bennett, “The Office of Sheriff: Historical Notes on its Evolution in New South Wales” (1976) 7 Sydney Law Review 360

W Prest (ed), Blackstone’s Commentaries on the Laws of England (Oxford University Press, 2016)

Category:Principal judgment
Parties: Litigation Fund WCX Pty Ltd (Applicant)
Homebuilding Pty Ltd (First Respondent)
The Sheriff of New South Wales (Second Respondent)
The District Court of New South Wales (Third Respondent)
Representation:

Counsel:
R Coshott (For applicant, with leave)
C Marshall (Second Respondent)

Solicitors:
Adams Lawyers (First Respondent)
Crown Solicitor for NSW (Second and Third Respondents)
File Number(s): 2024/00334499
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Citation:

[2024] NSWDC 407

Date of Decision:
10 September 2024
Before:
Abadee DCJ
File Number(s):
2022/00093495

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2020, Homebuilding Pty Ltd (Homebuilding), a construction company, obtained a monetary judgment in its favour against Mr and Mrs Cappello in relation to building works carried out at their property. Since then, Homebuilding has sought unsuccessfully to enforce costs judgments made in its favour in the proceedings at first instance and in Mr and Mrs Cappello’s unsuccessful appeal therefrom.

On 12 February 2024, an order was made authorising the NSW Sheriff (Sheriff) to enter Mr and Mrs Cappello’s premises for the purpose of taking goods under a writ of execution. Following an unsuccessful appeal from this order, Homebuilding then filed a notice of motion in the District Court on 2 July 2024, seeking to enforce the writ.

On 22 July 2024, Mr Robert Coshott, the sole director of Litigation Fund WCX Pty Ltd (Litigation Fund), filed a notice in the District Court proceedings under r 43.3 of the Uniform Civil Procedure Rules 2005 (NSW) on Litigation Fund’s behalf. In that notice, Litigation Fund claimed equitable ownership of all of Mr and Mrs Cappello’s assets on the basis of a deed dated 31 October 2023 (the Deed), which provided for a “line of credit” in the amount of $500,000 in favour of Mr and Mrs Cappello, secured by a charge over their assets. In the proceedings in this Court it was not clear whether any amount was actually advanced under the Deed, nor what, if any, amount was outstanding under the Deed.

On 26 August 2024, by way of interpleader, a notice of motion was filed in the District Court proceedings by the “NSW Sheriff’s Office”, seeking a determination of the ownership of the goods listed in Litigation Fund’s notice (Interpleader). Litigation Fund contended that the District Court had no power or jurisdiction to make any order in relation to the Interpleader on two bases: first, that the Interpleader suffered from various procedural deficiencies; and, second, that s 6 of the Sheriff Act 2005 (NSW) required that the Interpleader be brought by the “Sheriff’s alternate” or, alternatively, by the Secretary of the Department of Communities and Justice; and the Interpleader motion had been brought by neither such person. Litigation Fund did not appear on the hearing of the Interpleader, contending that there was no application validly before the Court.

On 6 September 2024, the primary judge rejected the first basis upon which Litigation Fund disputed the validity of the Interpleader holding that the various deficiencies that were established could be cured by an order of the court. As to the second basis, the primary judge found that that proceeding was not a legal proceeding “to which the Sheriff was a party” for the purpose of s 6(1)(a) of the Sheriff Act, nor that it was a proceeding the subject of an order under s 6(2) for the purpose of s 6(1)(b) (i.e., an order that the Sheriff’s functions be exercised by the Sheriff’s alternate). His Honour held that the Sheriff’s officer in question had authority to bring the Interpleader.

On appeal, Litigation Fund challenged the orders by the primary judge dismissing its claim and that it pay the Sheriff’s costs on an indemnity basis. It did so solely on the second basis that had been raised before the primary judge. Litigation Fund contended that there was jurisdictional error in that there was not before his Honour a valid application (the Interpleader motion being a nullity for want of compliance with s 6 of the Sheriff’s Act).

The Sheriff contended that s 6 was not applicable as it was not a “party” to the relevant proceedings but in any event that any breach of or non-compliance with s 6 did not render the Interpleader motion a nullity.

The Court held (Ward P, Leeming JA and Basten AJA), dismissing the appeal with costs:

  1. The reference to “any proceedings to which the Sheriff is a party” in s 6(1)(a) of the Sheriff Act contemplates only proceedings “to which” the Sheriff has formally been joined as a party. It is not apt to refer to a proceeding “in which” the Sheriff has an interest, or one in which the Sheriff may be described as an “interested person”. If the term “party” in s 6(1)(a), as properly construed, did encompass an “interested person”, the Sheriff, being a neutral party without personal interest in the outcome of the Interpleader, is not an “interested person”: [46]-[50] (Ward P).

    JP Morgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Limited v Fletcher (2014) 85 NSWLR 644; [2014] NSWCA 31, considered.

  2. Assuming, favourably to Litigation Fund, that s 6 of the Sheriff Act applies to the making of an application to a court and that s 6 was contravened, the consequence of a breach of s 6 by the filing of the Sheriiff’s interpleader application is not the mandatory dismissal of the interpleader but instead, at most, there is a curable irregularity which does not stand in the way of the otherwise valid invocation of the court’s jurisdiction. A breach of s 6 of the Sheriff Act is a consideration to which the Court can have regard in adhering to its duty in effectuating the overriding purpose of civil litigation of resolving the real issues in controversy: [81]-[98] (Leeming JA); [57] (Ward P agreeing).

    Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32; 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 [2014] NSWCA 409; (2008) 88 NSWLR 488, considered.

  3. As a matter of statutory construction, Litigation Fund’s judicial review application was misconceived. The two assumptions underpinning the applicant’s case (first, that the filing of the interpleader motion was the exercise of the Sheriff’s functions in relation to “legal proceedings to which the Sheriff is a party” within s 6(1)(a) of the Sheriff Act; and, second, that the prohibition in s 6(1) is engaged “in relation to” the Sheriff’s functions in conducting litigation to which he or she is a party) were erroneous. The better reading of s 6(1) is that the reference in the chapeau to “[t]he Sheriff’s functions in relation to” does not refer to the function of commencing or maintaining the legal proceeding to which the Sheriff is a party: [100]-[105] (Basten AJA).

JUDGMENT

  1. WARD P: By summons filed on 10 September 2024, Litigation Fund WCX Pty Ltd (Litigation Fund) seeks judicial review of a decision made in the District Court of New South Wales by Abadee DCJ (Homebuilding Pty Ltd v Cappello (No 3) [2024] NSWDC 407) (the primary judgment). In oral submissions, Litigation Fund made clear that it challenges two orders made by his Honour: Order 3, in effect, dismissing its claim that assets and property owned by the first defendant/respondent, Homebuilding Pty Ltd (Homebuilding), are the subject of a charge in its favour; and Order 5, ordering it to pay, on the indemnity basis, the costs of the NSW Sheriff (Sheriff) of and occasioned by Litigation Fund’s 22 July 2024 notice asserting that claim.

  2. The sole basis on which Litigation Fund challenges those orders is its contention that the primary judge committed jurisdictional error in finding that there was validly before him an interpleader Notice of Motion by the Sheriff; and thus acted ultra vires in making the impugned orders.

  3. By leave of the Court, Litigation Fund was represented on this application by its director, Mr Robert Coshott, formerly a practising solicitor. Leave was necessary because Mr Coshott no longer holds a practising certificate as a solicitor (see r 7.1(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR)). Mr Coshott has sworn two affidavits, one on 15 October 2024, annexing minutes of a company meeting on 10 September 2024 authorising him to represent the company in this litigation, and one on 4 November 2024, deposing to his awareness that he may be liable personally to pay some or all of the costs of the proceedings.

  4. Both Homebuilding and the District Court filed submitting appearances.

Background

  1. The present application arises in relation to a building dispute between parties other than Litigation Fund (namely, Homebuilding, on the one hand, and Mr and Mrs Cappello, on the other). It is outlined in the primary judgment (see at [1]-[35]) by reference to a judgment in this Court last year (Cappello v Homebuilding Pty Ltd [2024] NSWCA 88) and need only briefly be recounted here.

  2. In 2020, Homebuilding, a construction company, obtained a monetary judgment in its favour against Mr and Mrs Cappello in relation to building works carried out on their property (Capello v Hammond & Simonds NSW Pty Ltd [2020] NSWSC 1021). The amount of the sum awarded in Homebuilding’s favour was subsequently varied on appeal (Capello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57). Since then, Homebuilding has been attempting to enforce costs judgments made in its favour in the proceedings at first instance and on Mr and Mrs Cappello’s unsuccessful appeal therefrom. Homebuilding invoked the usual costs assessment process and obtained two certificates of determination of costs, which were filed in the Local Court and District Court respectively (the process by which a judgment is obtained as to the amount of the costs as assessed). Mr and Mrs Cappello were unsuccessful in their application for a review of the respective costs assessments, as they were in their appeal from the review panel’s decision and from the District Court’s decision dismissing that appeal.

  3. On 13 November 2023, a Writ for Levy of Property (Writ) was issued on the application of Homebuilding. On 12 February 2024 (after an unsuccessful attempt by the Sheriff’s office to execute the Writ), the primary judge made an order authorising the Sheriff to enter Mr and Mrs Cappello’s premises for the purpose of taking goods under a writ of execution. Mr and Mrs Cappello unsuccessfully appealed against that order (see Court of Appeal judgment referred to above, handed down on 23 April 2024 ([2024] NSWCA 88)).

  4. Homebuilding then filed a notice of motion in the District Court on 2 July 2024, seeking orders akin to those that had been granted by Abadee DCJ on 12 February 2024 (as required by the Sheriff’s Office).

  5. It was at this point that Litigation Fund became involved in the proceedings. On 22 July 2024, Mr Coshott filed in the District Court a notice under r 43.3 of the UCPR on behalf of Litigation Fund, claiming ownership of all of Mr and Mrs Cappello’s assets (real and personal), including the contents of their Haberfield home and motor vehicles registered in their names. The Notice to Sheriff of Disputed Property and Affidavit Verifying identified the basis for the claim of equitable ownership of all that property as being by virtue of a deed dated 31 October 2023 (Deed).

  6. The Deed between Mr and Mrs Cappello and Litigation Fund provides for a “line of credit” in the amount of $500,000 by Litigation Fund in favour of Mr and Mrs Cappello (see Recital and cl 1) and provides for the advance and interest thereon to be secured by way of a charge over and on the assets of Mr and Mrs Cappello (cl 2). The term of the advance is stated as being five years from the date of the Deed (cl 3, where second appearing). There was no evidence before the primary judge as to whether any amount was actually advanced to Mr and Mrs Cappello under that line of credit, nor, if there was such an advance (or advances), what amount is outstanding under the Deed.

  7. The 22 July 2024 notice was received by the Sheriff on 29 July 2024 and was duly provided by the Sheriff to Homebuilding. Homebuilding did not admit the claim the subject of the notice.

  8. On 26 August 2024, by way of interpleader, a notice of motion was filed in the District Court at Parramatta on behalf of the “NSW Sheriff’s Office”, seeking the determination by the court of the ownership of the goods listed in Litigation Fund’s notice. The notice of motion was supported by an affidavit affirmed on 26 August 2024 by Senior Sergeant Natasha Cubric. It is not disputed that Senior Sergeant Cubric is a Sheriff’s officer.

  9. Both the interpleader notice of motion and Homebuilding’s 2 July 2024 notice of motion (referred to at [8] above) came before the primary judge, who made various directions as to the motions, culminating in a hearing before his Honour on 6 September 2024. Litigation Fund chose not to attend that hearing. Rather, Litigation Fund (through Mr Coshott) forwarded submissions in writing, dated 31 August 2024, to the primary judge, contending that the court had no power or jurisdiction to make any order in relation to the interpleader application (by virtue of alleged deficiencies in the form, execution, and serving of the application) and stating that, as there was no application by the Sheriff before the court, it would not be appearing. That was clearly a forensic decision on the part of Litigation Fund, which thereby took the risk that orders would be made determining the respective motions in its absence.

  10. The bases on which Litigation Fund contended in its written submissions to the primary judge that there was no application validly before the court were twofold. First, as indicated above, Litigation Fund identified various deficiencies in the interpleader notice of motion (that it was unsigned; that it was not sealed by the court as having been filed; and that it had not been served personally on the claimant (Litigation Fund) nor on the parties to the proceedings (presumably a reference to Mr and Mrs Cappello)). Second, it was contended that s 6 of the Sheriff Act 2005 (NSW) (Sheriff Act) (set out below) required the interpleader application to be brought by the “Sheriff’s alternate” or, if no person was declared by the regulations to be the Sheriff’s alternate for the purposes of the Sheriff Act, the Secretary of the Department administering the Sheriff Act (the Department of Communities and Justice) and the interpleader application had not been signed by the requisite person.

  11. Litigation Fund’s submissions also (expressed to be for abundant caution) addressed what Litigation Fund (as it turns out incorrectly) understood to be Homebuilding’s only objection to its claim, that being that the Deed did not create a trust over the judgment debtor’s property. Litigation Fund made clear that its contention was that the Deed created an enforceable charge over the property.

Primary judgment

  1. It is only necessary here to address the primary judge’s reasons for rejecting the contention that the interpleader motion was not validly before the court, since there is no challenge to his Honour’s conclusion as to the merits of the claim made by Litigation Fund in its 22 July 2024 notice. Those reasons, after a summary of the submissions by each of Litigation Fund and the Sheriff, commence at [72].

  2. The primary judge addressed first what he referred to as the “somewhat technical arguments” raised by Mr Coshott about the UCPR, before turning to the jurisdictional challenge based on s 6 of the Sheriff Act.

  3. As to the “somewhat technical” arguments, at [73] his Honour referred to the contentions by Litigation Fund that the interpleader notice of motion was required to bear the signature of the person who brought the application, that it was not “sealed” and that it was not personally served on Litigation Fund. His Honour accepted on the probabilities that there was a requirement for the notice of motion to be signed but said that this was an irregularity which could be cured in due course by making a direction for the filing of an amended notice of motion; rejected the argument that the motion was not sealed (assuming, without deciding, that there was a requirement for the Court seal to be applied to the motion); and noted that, while the notice of motion was not personally served on Litigation Fund, the company was well aware of it and had responded to it (his Honour saying that a direction for informal service should be made). This effectively disposed of the first basis on which Litigation Fund contended that the application was not validly before the court and there is now no challenge to his Honour’s decision in this regard (see for example AT 11.5; AT 12.45).

  1. As to the second basis on which Litigation Fund challenged the jurisdiction of the court to determine the interpleader motion (based on s 6 of the Sheriff Act), his Honour (at [74]) accepted the Sheriff’s submissions on this issue. In summary, those submissions were that the application before his Honour was not a legal proceeding “to which the Sheriff was a party” for the purpose of s 6(1)(a) of the Sheriff Act and nor was it a proceeding the subject of an order under s 6(2) for the purpose of s 6(1)(b) of the Sheriff Act (i.e., an order that the Sheriff’s functions be exercised by the Sheriff’s alternate); and that Senior Sergeant Cubric, a Sheriff’s officer, had the authority or power to bring the motion (referring to ss 4(1)(c) and 5(1)(a) of the Sheriff Act). His Honour thus concluded that the Sheriff’s notice of motion was valid ([75]).

  2. His Honour went on to address the merits of the claim by Litigation Fund but, as noted above, it is not necessary to consider his findings on that issue. His Honour directed the filing of an amended interpleader notice of motion (which direction was complied with – an amended notice of motion signed by a solicitor from the Crown Solicitor’s office was duly filed and served) but in any event dismissed the motion on the basis that it had no continuing utility (see at [80]) having regard to the dismissal of Litigation Fund’s notice pursuant to rr 43.7(1) and 43.7(2)(e) or (g) of the UCPR (see at [79]).

Grounds of Review

  1. The summons identifies the following two grounds of review:

1.   His Honour erred in finding that there was validly before him an interpleader Notice of Motion by the Sheriff for NSW.

2.   His Honour acted ultra vires.

  1. It was made clear in oral submissions that both grounds in effect raise the same jurisdictional challenge, that being based on the contention that s 6 of the Sheriff Act required the application to be brought by the Secretary of the Department of Communities and Justice (it being accepted that the relevant regulations do not declare a person to be the “Sheriff’s alternate” for the purpose of this application). Mr Coshott described this as the crux of the case (AT 10.49), saying that the argument came down to whether the Sheriff was a “party in the real sense” (AT 11.21), the Sheriff not having been formally joined as a party to the proceedings. It was not suggested that the impugned decision was ultra vires for any other reason. Therefore, Grounds 1 and 2 will be considered together.

Retainer/delegation issue

  1. At the outset, however, I note that in its written submissions in this Court, Litigation Fund raises what seems to be a challenge to the retainer of the Crown Solicitor to act for the Sheriff in the judicial review proceedings in this Court based on correspondence in which the Crown Solicitor noted that if there was no Sheriff’s alternate declared under the regulations then that person is the Secretary of the Department and stated that the Secretary “will be providing” instructions in relation to the matter (see email dated 20 September 2024) and then that “[t]he Secretary is and has been instructing the Crown Solicitor since 20 September 2024” (see email dated 8 October 2024). Litigation Fund notes that an appearance had been filed by the Crown Solicitor’s office on 16 September 2024.

  2. It appears that there is also a challenge made as to the basis on which (or for whom) counsel appeared on behalf of the Sheriff at the hearing before the primary judge (in the absence of evidence as to any delegation to Senior Sergeant Cubric). No such issue as to delegation was raised before the primary judge – Mr Coshott explaining that this was because his submissions “went on” before the Sheriff became involved and there was no written submission by the Sheriff to say that there had been a delegation; Mr Coshott saying that it was not a point in issue when he prepared the written submissions forwarded to the primary judge before the hearing (see AT 17ff) and only became a point in issue in his reply of 18 November 2024 to the submissions dated 14 November 2024 filed for the Sheriff (see AT 24.32-37).

  3. There was some elision between the complaint as to lack of evidence of delegation and the challenge to the retainer of the Crown Solicitor’s office (see the discussion at AT 9.9-50). In any event, neither of those challenges (see [5] and [6] of the reply submissions of 18 November 2024) is the subject of a ground of review in the present proceedings.

  4. Those complaints can quickly be disposed of. The filing of a notice of appearance before the receipt of formal instructions from the Secretary to appear or act for the Sheriff in the proceedings (assuming that those instructions were not received until 20 September 2024 as the email of 8 October 2024 suggests) goes nowhere because there is nothing to suggest that the Crown Solicitor’s office did not have instructions to represent the Sheriff by the time of the hearing of the judicial review application. Moreover, a challenge to the validity of a solicitor’s retainer should be brought by a separate motion prior to the relevant hearing, though it is possible that such an issue is determined during the course of the hearing (see the discussion of Campbell JA, with whom Giles and Macfarlan JJA agreed, in Douglas v Daher (2009) 253 ALR 627; [2009] NSWCA 58, [76]-[161]). It is clear from the email correspondence between the Crown Solicitor’s office and Mr Coshott prior to the hearing of the judicial review application that Mr Coshott was well aware of the procedure for challenging the Crown Solicitor’s retainer if so minded to do so (see for example his email of 30 September 2024) and he seems to have chosen not to do so. In any event, no ground of review directed to a challenge of this kind.

  5. As to the complaint as to lack of evidence of a delegation by the Sheriff to Senior Sergeant Cubric, Litigation Fund did not contest this issue at first instance despite knowing that the interpleader notice of motion (the validity of which it was challenging) bore the signature block of that Sheriff’s office and despite having been served with Senior Sergeant Cubric’s affidavit in support of the notice of motion. It is not to the point that Mr Coshott’s written submissions to the primary judge “went on” before submissions were filed on behalf of the Sheriff (or Sheriff’s office); nor that there was no written submission by the Sheriff to say that there had been a delegation.

  6. If Litigation Fund wished to challenge the delegation of Senior Sergeant Cubric it should have done so when the proceedings were before the primary judge. The Sheriff would then have had the opportunity to respond thereto, including by adducing evidence on that issue. Litigation Fund should be bound by the forensic decision it took as to the interpleader motion and should not be permitted now to raise a new argument which it could have put had it chosen to attend the hearing before the primary judge (see Metwally v University of Wollongong (1985) 60 ALR 68 at 71; [1985] HCA 28 per Wilson J).

Alleged jurisdictional error

  1. I turn then to the substantive issue raised by Grounds 1 and 2 (namely, the jurisdiction of the District Court to determine the interpleader application in circumstances where the interpleader notice of motion was not signed by the Secretary of the Department of Communities and Justice).

Submissions

  1. In its written submissions of 14 October 2024, Litigation Fund repeats the matters raised before the primary judge – namely, that there was no compliance with the relevant provisions of the UCPR and that there was no application complying with s 6(1) of the Sheriff Act. However, as noted above, only the latter was pressed in oral submissions.

  2. On that issue, the Sheriff submits, as at first instance, that s 6 of the Sheriff Act has no application to the proceedings before the primary judge because those proceedings are not legal proceedings to which the Sheriff is a party within the meaning of s 6. Further, the Sheriff submits that, even if s 6 of the Sheriff Act did apply, a failure to comply with that provision would not make the interpleader motion a nullity. I consider this fall-back argument in due course.

  3. As to the Sheriff’s primary contention, while accepting that the expression “party” is capable of different meanings in different contexts, the Sheriff submits that, in the context where the expression appears in the phrase “legal proceedings to which the Sheriff is a party” in s 6(1)(a) of the Sheriff Act, it has the meaning that the Sheriff would be a “party” to legal proceedings where the Sheriff has been joined to those proceedings. It is noted that no order was made joining the Sheriff as a party to the proceedings before the primary judge.

  4. The Sheriff submits that this construction of s 6 of the Sheriff Act is consistent with (obiter) observations made by Beazley P, in JP Morgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Limited v Fletcher (2014) 85 NSWLR 644; [2014] NSWCA 31 (JP Morgan) (at [101], [104]), when considering the meaning of “party” as that term is used in r 36.16(2)(b) of the UCPR. Those comments were to the effect that in some instances the word “party” means a “party to the proceedings” (that is, a person formally joined as a party) but in other contexts it has a broader meaning, to mean a person who has an interest in the proceedings. Reference is also made to what was said by her Honour at [143], as to there being relevantly three expressions in the procedural legislation (“party [or parties] to proceedings”; “party” and “person”).

  5. The Sheriff submits that the phrase in s 6(1)(a) of the Sheriff Act (“legal proceedings to which the Sheriff is a party”) is similar to the expression “party to proceedings”, and hence that the expression “legal proceedings to which the Sheriff is a party” has a similar meaning (i.e., referring to proceedings to which the Sheriff has been formally joined).

  6. The Sheriff argues that there is a strong rationale behind the expression “legal proceedings to which the Sheriff is a party” having a clear, easily ascertainable meaning, submitting that if the meaning of the expression were to be determined by some criterion other than whether the Sheriff had been joined to the proceedings, the ambit of the provision would, depending on the meaning given, become much wider and more imprecise. The Sheriff argues that s 6(1)(a) of the Sheriff Act should operate with similar clarity to s 6(1)(b) of that Act; and that such clarity would be achieved by the construction for which she contends.

  7. In response, Litigation Fund contends that the Crown Solicitor’s submission overlooks what was said by Macfarlan JA in JP Morgan to the effect that there was an available inference that r 36.16(2)(b) of the UCPR was intended to have the same meaning of “party” as that attributed to the earlier rule in the Supreme Court Rules 1970 (NSW) (namely that it covered “applications by all interested persons”), his Honour there referring to the view of Jenkyn J in Nicholson v Nicholson [1974] 2 NSWLR 59 at 64.

  8. Litigation Fund contends that the Sheriff was a “party” because the Sheriff was an “interested person”, noting that the Crown Solicitor instructed counsel to appear and make submissions contrary to the claimant’s submissions in the proceedings before the primary judge; and that the Sheriff has opposed this judicial review proceeding (rather than filing a submitting appearance).

  9. Litigation Fund refers to s 6(3) of the Sheriff Act, which provides that “legal proceedings” includes “proceedings to enforce a judgment or order of a court…”, and it contends that the proceedings before the primary judge were such proceedings.

  10. Litigation Fund argues that if the Sheriff’s argument were correct (and s 6 of the Sheriff Act does not apply unless the Sheriff has been formally joined to proceedings) this would render s 6(1)(a) of the Sheriff Act otiose (contrary to the rules of statutory interpretation). Litigation Fund says that the only interpretation which would give a function to s 6(1)(a) is that which it advances.

Determination

  1. Part 43 of the UCPR prescribes the procedures for interpleader proceedings. The procedures specifically applicable to a Sheriff’s interpleader are at rr 43.3-43.6 of the UCPR. Rule r 43.3(1) provides that “[i]f the Sheriff takes or intends to take possession of any disputed property under a writ of execution, a claimant in respect of the property, or the proceeds of sale or value of the property, may give notice of his or her claim to the Sheriff”. Relevantly, r 43.6 provides that:

(1)   If an execution creditor on whom a notice of claim is served does not, within 7 days after service of the notice, serve a notice of admission on the Sheriff, and the claim is not withdrawn, the court may make an order granting relief by way of interpleader.

(2)    The Sheriff may apply for such an order by motion in the proceedings in which the writ of execution was issued.

  1. The “Sheriff” is not defined in the UCPR. The Interpretation Act 1987 (NSW) defines the Sheriff as “the Sheriff under the Sheriff Act 2005”. Section 3(1) of the Sheriff Act defines the Sheriff as “the person employed in the Public Service as Sheriff”.

  2. Section 4 of the Sheriff Act specifies various functions of the Sheriff, including “civil law enforcement functions given to the Sheriff by or under this Act and other Acts” (s 4(1)(c)), as well as “any other function given to the Sheriff by or under this Act or another Act or law” (s 4(1)(e)). As Leeming JA notes (see [77]), the Sheriff did not suggest that the bringing of an interpleader motion did not fall within the civil law enforcement function in s 4 of the Sheriff Act.

  3. Section 5 of the Sheriff Act empowers the Sheriff to delegate the Sheriff’s functions. The Sheriff may delegate to, inter alios, “any sheriff’s officer” (s 5(1)(a)). There is no dispute that Senior Sergeant Cubric is a Sheriff’s officer.

  4. Section 6 of the Sheriff Act, the critical provision on which Litigation Fund here relies, provides that:

(1)    The Sheriff’s functions in relation to—

(a)   any legal proceedings to which the Sheriff is a party, and

(b)   any legal proceedings the subject of an order in force under subsection (2),

are to be exercised by the Sheriff’s alternate, and not by the Sheriff.

(2)   If satisfied that any legal proceedings may affect the Sheriff’s interests, the court before which, or coroner before whom, the proceedings are being taken may order that the Sheriff’s functions in relation to the proceedings be exercised by the Sheriff’s alternate.

(3)   In this section, legal proceedings includes proceedings to enforce a judgment or order of a court and proceedings of an inquest or inquiry under the Coroners Act 2009.

  1. The “Sheriff’s alternate” is defined in s 3(1) as “such person as is declared by the regulations to be the Sheriff’s alternate for the purposes of this Act or, if no such person is declared, the Secretary”. The Sheriff Regulation 2021 (NSW) does not declare any person to be the Sheriff’s alternate. Thus, the Sheriff’s alternate is the “Secretary”. The “Secretary” is defined in s 3(1) as “the Secretary of the department in which this Act is administered”, which is the Department of Communities and Justice.

  2. In my opinion, the substantive complaint by Litigation Fund, which turns on the construction of s 6(1)(a) of the Sheriff Act, fails.

  3. The fact that “party” may in some contexts, and for some purposes under the UCPR, include an “interested” person does not mean that this is the meaning to be accorded to the word as it appears in s 6(1)(a). The word appears in that sub-section in the phrase “any legal proceedings to which [my emphasis] the Sheriff is a party”. That phrase to my mind makes clear that what is here contemplated is a proceeding “to which” the Sheriff has formally been joined as a party. It is not apt to refer to a proceeding “in which” the Sheriff has an interest (i.e., a proceeding in respect of which it may be described as an “interested person”). The expression as used in the Sheriff Act is in a very different context to that in which “party” came to be considered in JP Morgan.

  4. The reference to subs 3 does not assist Litigation Fund. True it is that the steps taken by Homebuilding which led to the interpleader motion involved legal proceedings to enforce the costs judgments it had obtained (as clearly did its own 2 July 2024 motion). But that does not shed light on whether s 6(1)(a) encompasses a proceeding to which the Sheriff is not a party in a formal sense (such as a proceeding in which the Sheriff has an interest in its outcome).

  5. I do not accept that such a construction renders s 6(1)(a) otiose (as Litigation Fund contends). Such a contention assumes that there could be no circumstances in which an order would be made under subs 2 without the Sheriff being made a party to the proceedings. However, subs 2 contemplates an order that the Sheriff’s “functions”, in relation to proceedings which may affect the Sheriff’s interests, be exercised by the Sheriff’s alternate. There may well be circumstances in which the Sheriff’s functions in relation to such proceedings would not require it to be made a party thereto (such as, for example, where a subpoena was issued calling for production of documents or evidence to be given).

  6. In any event, even if “party” in s 6(1)(a) as properly construed did encompass an “interested person”, I do not accept that the Sheriff is an interested person in relation to the interpleader motion. The essence of an interpleader is that the person interpleading is neutral and does not have a personal interest in the outcome of the application (such as, for example, where a stakeholder interpleads and pays the money into Court). That is precisely the position here. The Sheriff has no personal (or institutional) interest in whether or not Litigation Fund has an equitable interest in the goods the subject of the Writ. The Sheriff quite properly has invoked the interpleader procedure in order to obtain a judicial determination of that question in circumstances where there are competing claimants to the goods. The fact that the Sheriff is seeking to have the application determined does not mean that it has a personal interest in the subject matter of the application itself. Further, the fact that the Sheriff has acted, in effect, as a contradictor to Litigation Fund on that issue does not alter that conclusion (particularly in circumstances where Homebuilding has taken no role in the judicial review proceedings, making the need for a contradictor more acute).

  7. That conclusion makes it unnecessary to consider the Sheriff’s fall-back argument, namely that if (contrary to the Sheriff’s submissions) s 6 of the Sheriff Act does apply, a failure to comply with s 6 would not result in the interpleader motion being a nullity. However, I address it briefly below.

  8. In this regard, reference is made by the Sheriff to the decision of the High Court in Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 (Berowra), where proceedings had been brought in breach of s 151C of the Workers Compensation Act 1987 (NSW), which stipulated a 6-month delay before the commencement of court proceedings against an employer for damages. The High Court concluded that the prohibition imposed by s 151C did not deny legal effect both to proceedings for common law damages commenced in contravention of that prohibition and to all steps later taken by the parties under the relevant rules of court with respect to such proceedings.

  9. The Sheriff refers to the joint reasons of Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ at [10]-[12] (particularly the observation that the Court should not prefer a construction of s 151C which would result in s 151C having differential application depending upon the court in which proceedings were commenced) and those at [31]-[32]. Reference was also made to the observations of Kirby J to similar effect at [86]-[88].

  1. The Sheriff submits that s 6 of the Sheriff Act would not have the effect of rendering the Sheriff’s purported exercise of a function in relation to legal proceedings, which should have been exercised by the Sheriff’s alternate, a nullity for three reasons: first, that there is no express provision in the Sheriff Act that such an outcome should result (and it is unlikely that the legislature intended that non-compliance would have the potentially significant consequences which might follow from a function purportedly exercised by the Sheriff in relation to legal proceedings being a nullity); second, that a construction of s 6 which would have differential consequences, depending on the proceeding in which the relevant function of the Sheriff was purportedly exercised (i.e., depending on whether the court was one of superior jurisdiction or not) should be avoided; and third, that where s 6 applies, it may not always be apparent to a court whether or not a particular function in relation to legal proceedings had been exercised by the Sheriff’s alternate and the Sheriff argues that the court should not have to undertake a jurisdictional enquiry to satisfy itself of jurisdiction in such circumstances (referring to what was said at [32] of Berowra by the plurality).

  2. In oral submissions, the Sheriff referred to Tan v Owners Strata Plan 22014 (No 2) [2015] NSWSC 1920 as an authority in support of the proposition that even where a party’s appearance is ineffective because of non-compliance with statutory requirements the proceedings and orders were not nullities. Although Mr Coshott complained at the late notice of this authority, ultimately he did not consider that he needed to say anything about it (AT 25.42).

  3. As to the Sheriff’s fall-back submission that a breach of s 6 of the Sheriff Act would not result in the interpleader motion filed being a nullity, Litigation Fund says that s 6(1)(a) would be otiose in those circumstances. Litigation Fund says that Berowra does not assist the Sheriff because the District Court is not a superior court of record. Litigation Fund makes a similar submission in response to the Sheriff’s submission that non-compliance with the s 6 “mandate/prohibition” does not render a purported exercise by the Sheriff invalid or a nullity.

  4. I have had the opportunity to read Leeming JA’s reasons on the second issue, with which I agree.

Conclusion

  1. For the reasons set out above, the summons seeking judicial review should be dismissed with costs. As the Sheriff has sought to be heard on the form of any costs order, directions should be made for brief written submissions on that issue, with a view to determining that issue on the papers. I therefore propose the following orders:

  1. Summons dismissed with costs.

  2. The Sheriff of New South Wales is to file any brief written submissions (not exceeding 3 pages) as to the form of the costs order within 7 days.

  3. Litigation Fund WCX Pty Limited is to file any brief written submissions (not exceeding 3 pages) as to the form of the costs order within 7 days thereafter.

  4. Any brief written submissions by the Sheriff of New South Wales in response thereto (not exceeding 1 page) are to be filed within 3 days thereafter.

  5. The form of the costs order will be determined on the papers.

  1. LEEMING JA: I agree with Ward P that the summons should be dismissed with costs. I prefer to provide my own reasons on a novel question of construction which may arise in other cases. The President’s judgment enables me to be concise.

  2. Litigation Fund sought to set aside order 3 made by the District Court on 10 September 2024 that “The claim encapsulated in the Notice to Sheriff of Disputed Property dated 22 July 2024 is dismissed”, together with a consequential costs order. The grounds of review in Litigation Fund’s summons were that the primary judge “erred in finding that there was validly before him an interpleader Notice of Motion by the Sheriff for NSW” and that “His Honour acted ultra vires”. Prior to Litigation Fund’s service of its submissions in reply three days prior to the hearing in this Court, only two issues had been raised.

  1. The first was whether there had been a contravention of s 6 of the Sheriff Act 2005 (NSW) by the filing of a notice of motion seeking relief by way of interpleader by a Sheriff’s officer, on behalf of “NSW Sheriff’s Office”. The notice of motion was filed in proceedings commenced by Homebuilding Pty Ltd and its principal Mr Re against the judgment debtors Mr and Mrs Cappello in accordance with directions made on 16 August 2024 after Litigation Fund had filed a notice in those proceedings claiming ownership of all of Mr and Mrs Cappello’s assets.

  2. The second, which was exposed by the Sheriff’s submissions in opposition, was whether, even if s 6 had been contravened, that in any way affected the orders dismissing Litigation Fund’s claim.

  1. At the conclusion of the oral hearing in this Court, it became clear that Litigation Fund maintained that the Senior Sergeant within the Sheriff’s Office who filed the original notice of motion lacked a delegation by the Sheriff to do so, a point first advanced in its submissions in reply. There is nothing in that point. First, it was not taken before the primary judge. There is no proper basis for permitting Litigation Fund to depart from the way it conducted its case in the District Court, for it is apparent that this is a case where “evidence could have been given there which by any possibility could have prevented the point from succeeding”: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35 had that submission been advanced in a timely fashion. Secondly, the failure to raise this at trial meant there was no examination of the operation of the Carltona principle even bearing in mind the specific power of delegation in the Act; cf New South Wales Land and Housing Corporation v Navazi [2013] NSWCA 431 at [6] and [58]-[60]. Thirdly, and in any event, as a result of a separate submission (not sought to be re-agitated in this Court) concerning the signature on the notice of motion, the District Court made orders directing an amended notice of motion to be filed and served seven days thereafter. That occurred, this time with the Crown Solicitor’s Office acting for “Sheriff (NSW)”. I would accept the Sheriff’s submissions that the filing of this amended motion is a separate answer to any complaint about delegation. That is because there was no challenge at any stage to the Crown Solicitor’s retainer, which (as noted in Litigation Fund’s written submissions in this Court) had been advised on 5 September 2024 in advance of the hearing. Thus even if Litigation Fund were permitted to raise the point and there had been substance to it, the motion subsequently filed by the Crown Solicitor explicitly acting on behalf of the Sheriff must be taken to have ratified the original application made by the Senior Sergeant.

  2. I return to the two issues raised between the parties.

First issue – was there a contravention of s 6 of the Sheriff Act?

  1. Section 6 of the Sheriff Act provides:

6 Exercise of Sheriff’s functions by Sheriff’s alternate

(1)   The Sheriff’s functions in relation to—

(a)   any legal proceedings to which the Sheriff is a party, and

(b)   any legal proceedings the subject of an order in force under subsection (2),

are to be exercised by the Sheriff’s alternate, and not by the Sheriff.

(2)   If satisfied that any legal proceedings may affect the Sheriff’s interests, the court before which, or coroner before whom, the proceedings are being taken may order that the Sheriff’s functions in relation to the proceedings be exercised by the Sheriff’s alternate.

(3)   In this section, legal proceedings includes proceedings to enforce a judgment or order of a court and proceedings of an inquest or inquiry under the Coroners Act 2009.

  1. The “Sheriff’s alternate” is defined as a person so declared by regulations, in default of which it is the Secretary of the department in which the Sheriff Act is administered. Prior to the abolition of the Attorney-General’s Department, the statute defined the “Sheriff’s alternate” to be the Director-General of that department in the absence of any regulations. No regulations seem ever to have been made concerning the Sheriff’s alternate.

  2. The office of Sheriff is ancient. It pre-dates the Norman Conquest: see W Prest (ed), Blackstone’s Commentaries on the Laws of England (Oxford University Press, 2016), Vol IV, p 266. But it did not exist in New South Wales between 1788 and 1823, where instead similar functions were performed by the Provost Marshall. The office was created by the Third Charter of Justice (ie the letters patent issued on 13 October 1823 under the imperial enactment 4 Geo IV c 96), as explained by J Bennett, “The Office of Sheriff: Historical Notes on its Evolution in New South Wales” (1976) 7 Sydney Law Review 360. Colonial legislation which was consolidated in the Sheriff Act 1900 (NSW) thereafter elaborated the terms of the office and in part purported to alter the power of appointment. But there is at least a question as to the power of the local colonial and State legislature, prior to the commencement of the Australia Acts 1986 (Cth) and (UK), to amend the Third Charter, which had the force of imperial law (but cf Ex parte Chung (1861) 2 Legge 1458 at 1459), and it may have been with that in mind that s 18 of the Sheriff Act 2005 repealed the provisions of the Charter of Justice providing for the appointment of the Sheriff and his or her deputies.

  3. The functions of the office created under the name of “Sheriff” by the Charter of Justice, and continued under that name by later New South Wales legislation, are informed by that history. The position resembles any other legislation which uses terms with well established meanings: in order to identify the legal incidents of what is created by invoking the technical legal expression, one is assisted by an understanding of that expression; see for example Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [22]-[24]. However, very recently, the Legislature has explicitly recognised the functions of the Sheriff. Part 2 of the Act, which comprises ss 4 – 7D, is titled “Sheriff’s functions”. Section 4 in its present form identifies those functions as follows:

4 Sheriff’s functions

(1)   The Sheriff has the following functions—

(a)   to provide for the safety and security of courts and tribunals, including by exercising the functions given to the Sheriff by or under the Court Security Act 2005,

(b)   to provide for the effective management and administration of the jury system in accordance with the Jury Act 1977,

(c)   civil law enforcement functions given to the Sheriff by or under this Act and other Acts,

(d)   to provide protective security services to judicial officers,

(e)   any other function given to the Sheriff by or under this Act or another Act or law.

(2)   The Sheriff also has and may exercise functions conferred or imposed on the Sheriff by or under an Act or law of the Commonwealth, another State or a Territory (including functions conferred by way of delegation).

  1. As enacted in 2005, s 4 had simply provided:

The Sheriff has and may exercise such functions as are conferred or imposed on the Sheriff by or under this or any other Act or law.

  1. Subsection (2) was inserted in 2019: see item 1.20[1] of Schedule 1 to the Justice Legislation Amendment Act 2019 (NSW). But the articulation of particular functions in s 4(1), including “civil law enforcement functions given to the Sheriff by or under this Act and other Acts” in s 4(1)(c) was only effected by item 3 of Schedule 1 of the Sheriff and Court Security Amendment Act 2024 (NSW), with effect from 19 February 2024.

  2. No submission was made as to the purpose of s 6. Nor was any submission made as to the reason for the amendment in 2024 of s 4(1) so as to elaborate and articulate the functions of the Sheriff to which s 6 would apply. As it happens, the amendment of s 4(1) occurred after the Sheriff began to take steps executing writs obtained against Mr and Mrs Cappello in the present dispute, although it occurred before the Sheriff’s interpleader motion was filed.

  3. In large measure, the “Sheriff’s functions” now identified in s 4(1) concern physical conduct in the real world, for example, concerning the safety and security of courts and tribunals, juries, the service of writs and the provision of protective security services. It is clear enough that the “civil law enforcement functions given to the Sheriff by or under this Act and other Acts” includes the service of writs of execution under Part 8 of the Civil Procedure Act 2005 (NSW). At the core of those functions is the service of those writs in relation to property owned and occupied by judgment debtors.

  4. Much of the rest of the Sheriff Act is about conduct by the Sheriff and Sheriff’s officers in the real world. Section 7A is a power to enter onto land. Section 7B confers a power to conduct a personal search. Sections 7C and 7D concern the provision of security services to judicial officers and emergency assistance.

  5. The only other provision in Part 2 of the Act is s 7. Subsection (1) of s 7 requires the Sheriff and each Sheriff’s officer to take an oath or affirmation of office before exercising any of the Sheriff’s functions, but subs (2) provides that failing to do so does not affect the validity of anything done. I shall return to the significance of this to the second issue.

  6. It is far from self-evident to me that s 6 extends to the bringing and prosecuting of interpleader proceedings which may arise in the course of or following the execution of a judgment. The functions identified in s 6 and in Part 2 of the Act are things that the Sheriff and only the Sheriff may do or authorise. In contrast, in making an application for interpleader, the Sheriff is availing herself of an incident of civil litigation which may be deployed by any litigant.

  7. That is to say, there are two distinct reasons why the application for interpleader is somewhat removed from the functions identified in s 4(1)(c), namely the law enforcement function involving execution of a judgment. It is also not a function given to the Sheriff under any statute (unlike Part 8 of the Civil Procedure Act); rather, it is a general right available to a litigant.

  8. All of that tends to suggest that s 6 as a matter of construction does not speak to what occurred when the interpleader motion was filed in, and determined by, the District Court. So do the matters to which Basten AJA has referred.

  9. The legislative history points in the same direction. The explicit conferral of “civil law enforcement functions” upon the Sheriff only occurred last year. Prior to 2024, it is far from clear that the filing of a motion seeking relief by way of interpleader would engage the prohibition in s 6: there is no obvious candidate for the Act or law which conferred that function upon the Sheriff for the purposes of s 4(1) in its original form. And if s 6 would not have been engaged by an application for interpleader in 2023, why should the amendments in 2024 bring about any different result?

  10. The proposition that the Sheriff’s civil law enforcement function in s 4, and therefore the scope of the obligation in s 6, was confined to physical acts in the real world involving the entry onto property and the service of writs and did not extend to an application for interpleader, was squarely raised by the Court during the hearing. However, counsel for the Sheriff expressly accepted that bringing interpleader proceedings was a civil law enforcement function, and advanced no submission, even by way of fallback, that the words might more have a narrower operation. In those circumstances, it was understandable and inevitable that Litigation Fund would not address the point in reply. That does not mean that this Court must proceed on that basis. A court need not accept a concession as to the construction of any legal document, including a statute. No court is bound by an agreed proposition of law. As Mason CJ and Brennan J said in Pantorno v The Queen (1989) 166 CLR 466 at 473; [1989] HCA 18:

When the parties to an adversarial proceeding agree on a proposition of law and conduct their cases on that basis, their agreement does not bind the trial judge. If the judge determines the law to be different, he may apply the law as he determines it to be, but he must inform the parties of the view he has formed when that is necessary to give them an opportunity to address new issues arising from the judge’s departure from the proposition of law on which the case was conducted. Otherwise both parties are taken by surprise.

  1. The same point was made in Mangoola Coal Operations Pty Ltd v Muswellbrook Shire Council [2023] NSWCA 275 at [6]-[7] and in Cardaci v Cardaci [2023] WASCA 158 at [637]. Or, as it was put more succinctly in Soia v Bennett (2014) 46 WAR 301; [2014] WASCA 27 at [80], “The parties’ wrong view of the law does not bind the court”.

  2. Instead, the Sheriff maintained that she was not a “party to” the other proceedings within the meaning of s 6(1). The Sheriff invited this Court to give those words a narrow meaning, which excluded a case such as the present where the Sheriff had no interest in the outcome. The submission is not without force, as the President’s reasons disclose. However, on the other hand, it may be noted that the Sheriff appeared by counsel, and moved on a process, and obtained orders including costs orders in her favour. If the District Court had accepted Litigation Fund’s submission and dismissed the Sheriff’s motion as a nullity, I see no reason why the Sheriff would be unable to challenge that order for jurisdictional error or error of law on the face of the record. In short, there is also much to be said that, at least for some purposes, the Sheriff was a party to the proceedings in the District Court.

  3. I would prefer not to attempt to fix the legal meaning of the breadth or otherwise of “party to” in s 6 in the absence of submissions on the scope of “civil law enforcement function” in s 4. The two are obviously linked. In particular, if the former is narrow as is suggested by the considerations summarised above, then there is less need to give a constrained construction to the latter. But it is not necessary in order to resolve this summons to construe the scope of “party to” in s 6, affected as it is by a premise as to the scope of “law enforcement function” which is far from self-evident. In the circumstances of this proceeding, the preferable course is to proceed to the second issue without determining the first.

Second issue: does any breach of s 6 mean that there was no valid motion?

  1. Let it be assumed, favourably to Litigation Fund, that s 6 was contravened. Contrary to the gravamen of its submission, the mere fact that s 6(1) was contravened is the starting point, not the conclusion, of the inquiry. As much is plain from what was held in Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32, on which the Sheriff relied, where the contravention of a prohibition imposed by statute on commencing proceedings was held not to render the proceedings a nullity. As explained in 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 the question of construction is always what is the legal effect of a contravention of a statutory prohibition.

  2. There is a range of possible constructions. The statute may operate as a condition of the court’s jurisdiction. An example is s 48K of the Home Building Act 1989 (NSW) in which subsections (3), (4), (7) and (8) each provide that “The Tribunal does not have jurisdiction in respect of a building claim [if the claim is lodged out of time]”. The statute may alternatively impose an obligation upon a court as to the way the jurisdiction is to be exercised. An example is the obligation to transfer to a federal court an appeal in a matter arising under the Bankruptcy Act 1966 (Cth) commenced in a State court contrary to s 7(5) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth): see HBSY Pty Ltd v Lewis [2024] HCA 35. Alternatively, the satisfaction of the statutory condition may be an essential condition of the new right conferred by the statute (an example is the time period for applying to set aside a statutory demand in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 277; [1995] HCA 43), such that its non-satisfaction may require the dismissal of the application.

  1. But there are other possibilities which fall short of the result for which Litigation Fund contends, namely, dismissal of the Sheriff’s application irrespective of the merits. One is that breach of the duty imposed by s 6 does not mean that the proceedings are a nullity or must be dismissed, but instead that there is a mere irregularity which may be cured by court orders, and which does not stand in the way of the otherwise valid invocation of the Court’s jurisdiction.

  2. Let it be assumed, favourably to Litigation Fund, that s 6 applies to the making of an application to a court. The making of an application to a court engages a series of rules and principles, which include obligations upon the court to consider whether it has jurisdiction to hear and determine the application, and entitlements upon other litigants to apply for an amendment to or summary dismissal of the application. In such circumstances, there is little reason to conclude that a contravention of s 6 of itself insofar as it applies to the making of an application in a court results in the application being a nullity or must be dismissed.

  3. Similar reasoning may be found in 2 Elizabeth Bay, where proceedings were commenced in the Supreme Court by an owners’ corporation without having complied with s 80D of the Strata Schemes Management Act 1996 (NSW) (which required that a resolution first be passed at a general meeting). It was said at [106]:

The key to the resolution of this appeal is that the prohibition in s 80D is directed to commencing proceedings in a court or tribunal where a body of procedural law applies, whose ordinary operation deals with non-compliances with mandatory requirements. In that context, non-compliance with a mandatory requirement is to be read as engaging familiar procedures relating to stays and summary dismissal within that body of procedural rules, rather than absolute notions of nullity, invalidity, incapacity or mandatory dismissal. Much clearer language than appears in s 80D would be required in order to sustain a construction whereby those procedural rules were displaced by a limitation on jurisdiction or capacity or a qualification on the right to sue.

  1. The approach resembles, and reflects an aspect of, the more general principles stated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91]:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied[65]; there is not even a ranking of relevant factors or categories to give guidance on the issue.

  1. After rejecting the distinction taken from earlier cases between “mandatory” and “directory” provisions, which was said to record a result reached on other grounds, their Honours said at [93]:

A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”. (Footnote omitted).

  1. Applying those tests, a number of matters point to a breach of s 6 not leading to nullity or mandatory dismissal of the application. The first is that, as the Sheriff submitted, provisions are not ordinarily read as cutting down the jurisdiction of courts without express or necessary implication: Berowra Holdings Pty Ltd v Gordon at [31].

  2. A second is the point already mentioned, namely, that an application to a court engages a panoply of powers and entitlements, including applications for amendment, perhaps with retrospective effect, and for summary dismissal, all of which could likewise serve to vindicate the section. In light of those powers and entitlements, there is no need for the statute to be construed as mandating nullity or dismissal, and good reason not lightly to do so.

  3. A third appears from the face of s 6. Whether or not a court concludes that proceedings may “affect the Sheriff’s interests” and makes an order thereby engaging the prohibition in s 6(1) may be a matter of judgment, and it may be something which only becomes clear as the litigation progresses (consider for example a dispute in which following the service of affidavits it becomes clear that an important issue is what the Sheriff said or did when executing a writ). That in turn suggests that the legal consequences of a contravention of s 6 do not have the all-or-nothing quality of nullity for which Litigation Fund contends.

  4. A fourth is that it may also not be obvious whether steps are being taken by the Sheriff or the Sheriff’s alternate, especially where the steps are taken by legal practitioners. In this Court, the Sheriff pointed to the potential for inconvenience and capricious outcomes if a contravention of s 6 carried the consequence of nullity; cf Project Blue Sky at [97]-[99].

  5. I return to s 7. Unlike s 6, s 7 speaks expressly to the legal consequences of its contravention. It might be said that the absence of any counterpart in s 6 to s 7(2) suggests that the contravention is of consequence. But that does not mean that contravention is a nullity, as opposed to entitling a court to insist on its compliance. And in any event, the submission carries the familiar limitations of arguments based on expressio unius: cf Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 at [34].

  6. For those reasons, I would accept the Sheriff’s submission that the consequence of a breach of s 6 by the filing of the Sheriff’s application for interpleader is not its mandatory dismissal. Instead, it is a consideration to which the Court can have regard in adhering to its duty in effectuating the overriding purpose of civil litigation of resolving the real issues in controversy.

  7. That conclusion is fatal to Litigation Fund’s summons as advanced in this Court. But it is worth pointing out that although it is a technical response to a technical submission, it is accompanied by powerful factual considerations the force of which may not be apparent from what has already been said, and which were not addressed by Litigation Fund’s submissions.

  8. Neither the originating process in the District Court, nor the transcript of what occurred, was placed into evidence. But it may be inferred – from the filing numbers and the amount claimed – that the originating process was an assessor’s certificate, in the amount of some $160,000, which had been filed in the Court and created a deemed judgment in that amount under the Legal Profession Uniform Law. That deemed judgment was allocated a file number, and it was following the execution of that judgment that the Sheriff was met by the claim by Litigation Fund resulting in this interpleader proceeding.

  9. Litigation Fund made no attempt to explain how on any view of the matter, a contravention by the Sheriff of s 6 when the application for interpleader was filed somehow precluded the District Court from adjudicating the real issue dividing the parties who claimed a beneficial interest in the assets. Plainly the District Court had jurisdiction to issue the judgment based on the costs certificate, and to issue the writ by way of execution. Plainly there was a dispute between persons claiming interests in the assets, in which the Sheriff was connected but claimed no entitlement. There was no suggestion that the directions of the District Court made on 16 August 2024, evidently intended to formalise the reality of the controversy, that “the Sheriff is to file and serve (in accordance with r 10.22 of the UCPR) on Litigation Fund [W]CX Pty Ltd any application (and any evidence in support) of the kind contemplated by and in accordance with r 43.4(1) and (2) of the UCPR, by 5pm on 26 August 2024” were beyond power. In those circumstances, there is no reason for any contravention of s 6 to play any part in the District Court’s task of adjudicating the real issue in dispute.

  10. Indeed, let it be assumed that, contrary to all of the above, the Sheriff’s motion was a nullity. There remained proceedings pending in the District Court, properly commenced by the judgment creditor, in which Litigation Fund had claimed an interest in the Cappellos’ assets. The proceedings could not be resolved without resolving that issue. At no stage has Litigation Fund explained how the dispute between the parties directly interested in the beneficial interest in the Cappellos’ assets, namely, Litigation Fund and Homebuilding, would not be determined, or would be determined in any other way, even if everything Litigation Fund contended concerning the interpleader application were accepted.

Conclusion and orders

  1. For those reasons, even if it be assumed favourably to Litigation Fund that s 6 applied to the Sheriff’s interpleader application and it was breached, then there was at most a curable irregularity. The contravention did not require the Sheriff’s motion to be dismissed. It follows that the summons in this Court must be dismissed.

  2. I agree with the orders proposed by Ward P.

  3. BASTEN AJA: As explained by the President and Leeming JA, the applicant’s claim for judicial review turns on the operation of s 6(1)(a) of the Sheriff Act 2005 (NSW), set out at [44] above. I agree that the summons should be dismissed and would order the applicant to pay the costs of the second respondent (the Sheriff) in this Court. I do so on the basis that the application was misconceived, purely as a matter of statutory construction.

  4. There were two assumptions underlying the applicant’s case: the first was that the filing of the interpleader application in the District Court was the exercise of the Sheriff’s functions in relation to “legal proceedings to which the Sheriff is a party” within s 6(1)(a) of the Sheriff Act. Self-evidently, that cannot be right: the Sheriff sought to become a party to proceedings to which she was not a party. Accepting that the interpleader motion fell within the proper functions of the Sheriff, the applicant’s construction of s 6(1)(a) comes close to negating the existence of that function. That is, if the Sheriff sought to commence proceedings, she would immediately lose the power to do so, because the power would be vested in the Sheriff’s alternate. If the Parliament had intended that result it could have done so by adopting the simple scheme of ss 4 and 5 of the Crown Proceedings Act 1988 (NSW) and stating that (i) where the Sheriff sought to bring proceedings, that function would vest in the “Sheriff’s alternate” and (ii) any person seeking to bring proceedings against the Sheriff could do so by bringing proceedings against the Sheriff’s alternate. Section 6(1)(a) says neither of those things.

  5. If the contention were that, once joined, the Sheriff could no longer exercise any function in the proceedings, having become a party, a similar objection arises: that construction would negate the purpose of the Sheriff becoming a party. Although this was not the contention put forward by the applicant, it directs attention to the second assumption underlying the applicant’s construction of s 6(1), namely that the prohibition is engaged “in relation to” the Sheriff’s functions in conducting litigation to which he or she is a party. In my view that assumption is erroneous. To explain why that is so it is necessary to identify the purpose of s 6(1), in accordance with s 33 of the Interpretation Act 1987 (NSW).

  6. The apparent purpose of requiring another party to exercise the Sheriff’s functions “in relation to” proceeding is to avoid a conflict of duties, or of duty and interest. For example, if an order is made in the proceeding, either in favour of or against the Sheriff, the Sheriff’s independence might be seen to be compromised in relation to the enforcement of the order. Even the Sheriff’s functions in providing security, which could require the Sheriff’s officers to have contact with the judge, could not be exercised appropriately by a party to the proceedings.

  7. To give effect to that purpose, the Sheriff can and should be free to conduct proceedings to which he or she is a party: the functions which are transferred to the alternate are ancillary or consequential functions, not being the conduct of the proceeding, but other functions “in relation to” the proceeding. Thus s 6(1) will operate in the present case to require that any costs order made by this Court in favour of the Sheriff must be enforced by the Sheriff’s alternate, if enforcement becomes necessary. It would also have entailed the consequence (not identified by the parties) that if security had been necessary in relation to the proceeding in this Court, it should have been arranged by the Sheriff’s alternate. The same conclusion would be reached in relation to control of the jury, in the unlikely event that the Sheriff was a party in a jury trial.

  8. Returning to the text of s 6(1), the better reading is that the chapeau (“[t]he Sheriff’s functions in relation to”) does not refer to the function of commencing or maintaining the legal proceeding to which the Sheriff is a party. This construction avoids the element of circularity noted above and has an operation which is consistent with the apparent purpose of the provision.

  9. It follows that the applicant’s case was misconceived. The summons should be dismissed and the applicant should pay the Sheriff’s costs in this Court.

**********

Amendments

30 September 2025 - Amendments to quotes in [68], [70] and [82]

Decision last updated: 30 September 2025

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

4

Litigation Fund WCX Pty Ltd v Homebuilding Pty Ltd (No 2) [2025] NSWCA 44
Salmon v Albarran [2025] NSWCA 42
Litigation Fund WCX Pty Ltd v Darren Mitchell [2025] NSWCA 27