Lysaght Bros and Co Ltd v Falk (No 2)

[1905] HCA 14

2 CLR 443

LYSAGHT BROS. &CO. LTD.

APPELLANTS FALK

RESPONDENT (No. 2).

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Allackment--Non-payment of costs of appeal-New trial-High Court Procedure

Act 1903 (No. 7 of 1903), sec. 26 (b)-Rules of the High Court 1903, Part I., Order XXXF., r. 1.

An order for payment of the costs of an appeal is all order for the payment of money to some person within the meaning of Rules of the High Court 1903, Part I., Order XXXV., 1. 1.

2 CLR 444

Therefore, an order of the High Court for payment of the costs of all appeal from the Supreme Court of a State will not be enforced by attachment.

Nor will the payment of the costs of an appeal in which a new trial is ordered be made a condition precedent to the new trial.

MOTION for attachment. (No. 2).

The appellants were successful in an appeal to the High Court from a decision of the Supreme Court of New South Wales. The respondent had obtained a verdict against the appellants at nisi prius, and the appellants moved the Full Court for a rule nisi for a new trial Falk v. Lysaght 1. This being refused, the appellants appealed to the High Court, and the appeal was allowed with costs, ante p. 421. The respondent, without paying the costs of the appeal, set down the action for trial, and gave the appellants notice of trial for 7th June, 1905.

This was a motion by the appellants to the High Court for 8 writ of attachment against the respondent for non-payment of the costs, or in the alternative for a direction that the payment of the costs should be made a condition precedent to the respondent being allowed to proceed to trial.

J. L. Campbell, for the appellants. Sec. 26 (b) of the High Court Procedure Act 1903 gives every person in whose favour a judgment of the High Court is given the same remedies for enforcing it against the property or person against whom it IS given as are allowed by the laws of the State in which such person is resident to persons in whose favour a judgment of the Supreme Court of that State is given in like cases. It has been the prac- tice in New South Wales to issue writs of attachment in such cases. The appellants are entitled to some security against loss by further unsuccessful proceedings on the part of the respondent.

[GRIFFITH C.J. / This seems an extraordinary application. All litigants are liable to the risk of having proceedings taken against them by impecunious persons.]

The right of a successful party to a writ of attachment for non-payment of costs in interlocutory proceedings is recognized by r. 270 of the Supreme Court Rules Rolin and Innes Sup. Ct.

1(1904) 4 S.R. (N.S.W.), 665. 2 CLR 445

Prac., p. 412. An order of the Court of Appeal cannot be of less H. weight than that of a single Judge. [He referred to Merritt V. Smith 1; Stockdale v. Hicks 2; Snow, Burney and Stringer, Ann. Prac., 1901, p. 608.]

[GRIFFITH C.J. referred to Rule 1, Order XXXV., of the High Court Procedure Rules.]

That is no limitation upon the right conferred by the Statute, in sec. 26.

The Statutes relating to the abolition of imprisonment for debt have no bearing upon attachment for non-payment of costs: Evans v. Bear 3; Rolin and Innes, Sup. Ct. Prac., p. 287. The practice in New South Wales in such matters is similar to that in Chancery in England. [He referred to In re Neal, Weston V. Neal 4; In re Wickham, Marony v. Taylor 5.]

Shand and A. Thomson, for the respondent, were not called upon.

GRIFFITH C.J. As to the first branch of this application reliance is placed by the appellants upon sec. 26 of the High Court Pro- cedure Act 1903, which is in these words: " Every person in whose favour a judgment of the High Court is given shall be entitled to the same remedies for enforcing it by execution or otherwise- (a) Against the property of the person against whom it is given; and (b) Subject to limitations which may be prescribed by any Rules of Court, against the person against whom it is given, as are allowed, by the laws of the State in which such property is situated or such person is resident, as the case may be, to persons in whose favour a judgment of the Supreme Court of the State is given in like cases." The Rules of Court made under that section are contained in Order XXXV. of Part I. Rule 1 deals with the question of attachment. It provides that a judgment or order for the payment of money into Court or for the perform- ance of a judgment, order, or writ, by which any person is required to do any act other than the payment of money to some person,

110 S.C.R. (N.S. W.), 230. 29.N.S.W. W.N., 78. 3L.R. 10 Ch., 76. 431 Ch. D., 437. 535 Ch. D., 272. 2 CLR 446

may be enforced by writ of attachment." That is a plain state-

ment that orders for the payment of money to a person cannot be enforced by writ of attachment. It is a limitation prescribed by the rule. It cannot be disputed that the order now in question is an order for the payment of money to some person. The point (No. 2).

came before the Court of Appeal in England in the case of Bates V. Bates 1, and counsel did not attempt to argue it. Even if this case did not clearly fall within the limitation, I for my part should like to see an instance in which an order has been made that payment of the costs of a new trial motion by the unsuccessful party should be a condition precedent to his being allowed to proceed to trial. It is said that it is the usual practice to do soin New South Wales. I should like to see some distinct authority for that practice if it exists.

We think, therefore, that the motion must be dismissed with costs.

Campbell asked to be allowed to set off these costs against the costs due from the respondent to the appellants. There is no set-off allowed unless an order is made to that effect.

GRIFFITH C.J. I doubt the necessity for the order; but there should be a set-off.

Motion dismissed with costs. Set-offallowed Solicitor, for the appellants, H. C. E. Rich. Solicitors, for the respondent, Shipway &Berne.

114 P.D., 17