NUNGATAH Pty Ltd v Boyle
[2007] WASC 72
•29 MARCH 2007
NUNGATAH PTY LTD & ORS -v- BOYLE & ORS [2007] WASC 72
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 72 | |
| Case No: | CIV:1587/2004 | 21 MARCH 2007 | |
| Coram: | TEMPLEMAN J | 29/03/07 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Solicitors liable for poundage Sheriff have costs of application to be taxed if not agreed | ||
| B | |||
| PDF Version |
| Parties: | NUNGATAH PTY LTD (ACN 060 844 957) DESMOND KEITH BUNTER KALEEN JAN BUNTER BRIAN DESMOND LINDSAY DAVID HAROLD FARRINGTON ALISON MAY FARRINGTON JANICE LORRAINE PETHICK MOLLIE BINIA CECILIA TAYLOR TINA DOREEN RUSSELL VINCENT DAVID MAZZARDIS BARBARA ANN MAZZARDIS JUNE LYALL ALAN FREDERICK BOYLE LEONIE ANN BOYLE FRANK SHARP GILLIAN SHARP THE SHERIFF |
Catchwords: | Sheriffs Entitlement to poundage Creditors issue writ of fi fa Writ registered on title Debtor sells land by private contract and proceeds distributed to creditors Whether solicitors liable for poundage Circumstances of execution of writ Creditors receive money by reason of execution No undertaking sought from solicitor |
Legislation: | Nil |
Case References: | In re a Company [1915] 1 Ch 520 Mortimore v Cragg (1878) 3 CPD 216 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Emms, unreported; SCt of WA; 13 September 1972 The Sheriff of Western Australia v Monadelphous Engineering Associates (NZ) Ltd (In Liq), unreported; FCt SCt of WA; Library No 920446; 28 August 1992 WT Lamb & Sons v Rider [1948] 2 KB 331 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
DESMOND KEITH BUNTER
Second Plaintiff
KALEEN JAN BUNTER
Third Plaintiff
BRIAN DESMOND LINDSAY
Fourth Plaintiff
DAVID HAROLD FARRINGTON
Fifth Plaintiff
ALISON MAY FARRINGTON
Sixth Plaintiff
JANICE LORRAINE PETHICK
Seventh Plaintiff
MOLLIE BINIA CECILIA TAYLOR
Eighth Plaintiff
TINA DOREEN RUSSELL
Ninth Plaintiff
- VINCENT DAVID MAZZARDIS
Tenth Plaintiff
BARBARA ANN MAZZARDIS
Eleventh Plaintiff
JUNE LYALL
Twelfth Plaintiff
AND
ALAN FREDERICK BOYLE
First Defendant
LEONIE ANN BOYLE
Second Defendant
FRANK SHARP
GILLIAN SHARP
Third Defendants
Catchwords:
Sheriffs - Entitlement to poundage - Creditors issue writ of fi fa - Writ registered on title - Debtor sells land by private contract and proceeds distributed to creditors - Whether solicitors liable for poundage - Circumstances of execution of writ - Creditors receive money by reason of execution - No undertaking sought from solicitor
Legislation:
Nil
Result:
Solicitors liable for poundage
Sheriff have costs of application to be taxed if not agreed
(Page 3)
Category: B
Representation:
Counsel:
First Plaintiff : Mr D H Solomon
Second Plaintiff : Mr D H Solomon
Third Plaintiff : Mr D H Solomon
Fourth Plaintiff : Mr D H Solomon
Fifth Plaintiff : Mr D H Solomon
Sixth Plaintiff : Mr D H Solomon
Seventh Plaintiff : Mr D H Solomon
Eighth Plaintiff : Mr D H Solomon
Ninth Plaintiff : Mr D H Solomon
Tenth Plaintiff : Mr D H Solomon
Eleventh Plaintiff : Mr D H Solomon
Twelfth Plaintiff : Mr D H Solomon
First Defendant : No appearance
Second Defendant : No appearance
Third Defendants : No appearance
The Sheriff : Mr N C Monahan
Solicitors:
First Plaintiff : Solomon Brothers
Second Plaintiff : Solomon Brothers
Third Plaintiff : Solomon Brothers
Fourth Plaintiff : Solomon Brothers
Fifth Plaintiff : Solomon Brothers
Sixth Plaintiff : Solomon Brothers
Seventh Plaintiff : Solomon Brothers
Eighth Plaintiff : Solomon Brothers
Ninth Plaintiff : Solomon Brothers
Tenth Plaintiff : Solomon Brothers
Eleventh Plaintiff : Solomon Brothers
Twelfth Plaintiff : Solomon Brothers
First Defendant : No appearance
Second Defendant : No appearance
Third Defendants : No appearance
The Sheriff : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
In re a Company [1915] 1 Ch 520
Mortimore v Cragg (1878) 3 CPD 216
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Emms, unreported; SCt of WA; 13 September 1972
The Sheriff of Western Australia v Monadelphous Engineering Associates (NZ) Ltd (In Liq), unreported; FCt SCt of WA; Library No 920446; 28 August 1992
WT Lamb & Sons v Rider [1948] 2 KB 331
(Page 5)
1 TEMPLEMAN J: The Sheriff of Western Australia has reported to the Court that the plaintiffs' solicitors, Solomon Brothers, have defaulted in payment of fees or charges properly charged by the Sheriff in connection with the execution of a judgment by way of a writ of fieri facias ("fi fa"), pursuant to item 5(a) of the Supreme Court (Fees) Regulations 2002 (WA) ("the Regulations").
2 When such a report is made, the Court has jurisdiction, pursuant to O 82 r 16 of the Rules of the Supreme Court 1971 (WA), to "make all necessary orders to enforce payment by the solicitor of such fees or charges".
3 In dealing with this application, I wish to make plain that there is no suggestion of delinquency on the part of Solomon Brothers. They contend that there were no fees or charges "properly charged" by the Sheriff and that, accordingly, there has been no default in payment. They contend further, that if fees or charges are payable, it is not they who should be liable, but the plaintiffs, on the ordinary principles of agency.
4 The application has been argued by Solomon Brothers, without involving the plaintiffs (for whom Solomon Brothers no longer act, their retainer having been completed) and at their own expense.
5 The application is on the basis of a statement of agreed facts. They are as follows:
"1. In or about April 2004, the plaintiffs commenced proceedings against the defendants.
2. On or about 9 September 2004, the plaintiffs obtained default judgment against the first and second defendants for $284,999.30 plus interest at the rate of 6% per annum and costs.
3. On or about 17 September 2004, the plaintiffs issued a writ of fi fa and subsequently delivered that writ of fi fa to the Sheriff on or about 20 September 2004.
4. On or about 23 September 2004, the plaintiffs' writ of fi fa was registered on the certificate of title for 35 Jennaberring Road, Quairading (the 'Property'). At that time, the Property was owned by the first defendant, Mr Alan Boyle.
(Page 6)
- 5. By a letter dated 10 December 2004, Solomon Brothers requested the Sheriff to make enquiries with the registered mortgagee of the Property, Esanda Finance, to determine whether there was any equity in the Property.
6. By a facsimile dated 13 December 2004, the Sheriff informed Solomon Brothers that there was a prior writ of fi fa against the defendants for $742,283.00 and that, if he took possession of and sold the Property, he would disburse all of the proceeds of sale to the issuer of that prior writ of fi fa.
7. The prior writ of fi fa was not registered on the title to the Property at any time during the time the plaintiffs' writ of fi fa was registered on the title to the Property.
8. By a facsimile dated 16 December 2004, Solomon Brothers informed the Sheriff that Solomon Brothers did not agree that the Sheriff must disburse the proceeds of sale of the Property to the issuer of the prior writ of fi fa and requested the Sheriff to proceed to make enquiries with Esanda Finance to determine whether there was any equity in the Property.
9. By a facsimile dated 22 December 2004, the Sheriff informed Solomon Brothers that it makes payments in accordance with the ruling in Emms (unreported, Wallace J, 13 Sep 1972) and any monies it recovers from the sale of the judgement debtor's real and personal property would be insufficient to satisfy the prior writ of fi fa.
10. By a facsimile dated 9 January 2005, the Sheriff informed Solomon Brothers that:
10.1 the judgment debtor had farm machinery which was of no commercial value; and
10.2 the Property was the judgment debtor's only valuable asset.
11. Prior to 10 March 2005, Mr Boyle entered into a private contract to sell the Property.
(Page 7)
- 12. On or about 10 March 2005, Solomon Brothers received a letter from Documentary Services Pty Ltd, Mr Boyle's settlement agent, requesting the plaintiffs to withdraw their writ of fi fa in order for the sale of the Property to proceed.
13. The plaintiffs agreed with Mr Boyle that they would withdraw their writ of fi fa on the condition that the whole of the net proceeds of sale of the Property be paid to them. Solomon Brothers negotiated this agreement with Mr Boyle's settlement agent.
14. By a facsimile dated 29 April 2005, Solomon Brothers requested the Sheriff inspect Mr Boyle's farm machinery, and if it was of any value, seize and sell it.
15. By a facsimile dated 2 May 2005, the Sheriff informed Solomon Brothers that he required a deposit in order to seize and sell the farm machinery and that if they were to be sold, the proceeds of sale would be paid to the issuer of the prior writ of fi fa. The Sheriff also requested information regarding the proceeds of sale the plaintiffs had recovered from the sale of the Property.
16. By a facsimile dated 9 May 2005, Solomon Brothers informed the Sheriff that settlement of the sale of the Property had not occurred and that Solomon Brothers had been instructed by the plaintiffs to remove their writ of fi fa in exchange for the net proceeds of the sale of the Property.
17. Settlement of Mr Boyle's sale of the Property occurred on 2 June 2005. The net proceeds of sale paid to the plaintiffs at settlement was $41,235.92.
18. The plaintiffs incurred legal costs in arranging for the withdrawal of their writ of fi fa, corresponding with Mr Boyle's settlement agent and attending on settlement.
19. The Sheriff had no involvement in arranging the sale of the Property, the withdrawal of the plaintiffs' writ of fi fa or settlement of the sale.
(Page 8)
- 20. By a facsimile dated 14 June 2005, the Sheriff requested information from Solomon Brothers regarding the sale of the Property.
21. By a facsimile dated 14 June 2005, Solomon Brothers informed the Sheriff that settlement of the Property occurred on 2 June 2005 and that the net proceeds of sale paid to the plaintiffs at settlement was $41,235.92.
22. By a facsimile dated 17 June 2005, the Sheriff demanded payment of $1,557.09 for poundage and other fees as a result of the sale of the Property.
23. By a letter dated 27 September 2005, the Sheriff informed Solomon Brothers that the plaintiffs' writ of fi fa had expired on 16 September 2005 and that if there was no proof of renewal of the writ, the Sheriff would close the file and render his account.
24. By a facsimile dated 11 October 2005, the Sheriff demanded payment of $1,557.09 for poundage and other fees.
25. By a facsimile dated 11 October 2005, Solomon Brothers informed the Sheriff that it disputed the Sheriff's entitlement to poundage and fees for preparation of sale.
26. By a facsimile dated 14 October 2005, the Sheriff again demanded payment of poundage and fees.
27. By a letter dated 22 December 2005, the Deputy Sheriff demanded payment of poundage and fees.
28. By a letter dated 3 February 2006, the Deputy Sheriff informed Solomon Brothers that if he does not receive payment for poundage and fees within 14 days, he would report the default to the Registrar of the Supreme Court.
29. By a letter dated 16 March 2006, the Acting Principal Registrar informed Solomon Brothers that the Sheriff had reported the default in payment to the Court.
30. By a letter dated 5 May 2006, the Acting Principal Registrar instructed Solomon Brothers to make an application pursuant to Regulation 5A of the Supreme
- Court (Fees) Regulations 2002 if Solomon Brothers wished to formally dispute the payment to the Sheriff.
- 31. On 15 May 2006, Solomon Brothers filed an application pursuant to Regulation 5A of the Supreme Court (Fees) Regulations 2002.
32. On 14 July 2006, the Principal Registrar delivered his reasons for decision in relation to Solomon Brothers' application."
6 Although the Sheriff initially claimed $1557.09 for poundage and other fees (agreed fact 24), there is no dispute that the amount of poundage, calculated properly in accordance with the Regulations, is $1368.39. The dispute is whether poundage was "properly chargeable" and, if so, whether Solomon Brothers were liable to make payment.
7 Principal Registrar Chapman decided that poundage was properly chargeable but that he had no jurisdiction to determine whether Solomon Brothers were liable to make payment.
8 Mr Douglas Solomon, appearing on behalf of Solomon Brothers, submits that in this application I am dealing with the matter de novo and that, in any event, Principal Registrar Chapman's decision was based on the fact that the Sheriff had registered the writ of fi fa. That was not so: the writ was registered by Solomon Brothers.
9 I accept that I am dealing with the matter de novo and I therefore turn to consider the opposing submissions.
10 Mr Solomon's primary submission is that the Sheriff did not execute the writ of fi fa and that accordingly, no poundage is properly chargeable.
11 Mr Solomon points out that, as emerges from the agreed facts, all the Sheriff did was to inform Solomon Brothers that he had a prior writ of fi fa which had not been registered but which would take priority. (The Sheriff was bound to act on a decision to that effect by Wallace J: Re Emms, unreported; SCt of WA; 13 September 1972.) Thereafter, the sale of the subject property was negotiated by the parties to the litigation and the purchaser.
12 Mr Solomon acknowledges that the note to item 5(a) to sch 2 of the Regulations provides that:
(Page 10)
- "For the purposes of this item -
(a) with respect to land, or an interest in land, the service of the writ of fieri facias on the Registrar of Titles under section 133 of the Transfer of Land Act 1893
…
is to be taken to be 'seizure'."
- As Mr Solomon points out, this is a deeming provision: there is no actual seizure of the land by the Sheriff. He submits that there having been no actual seizure and no sale of the subject property by the Sheriff, there has been no execution.
13 I am unable to accept that submission. In Mortimore v Cragg (1878) 3 CPD 216 at 219, Brett LJ said:
"Where an execution issues the transaction may be divided into four parts: 1. The delivery of the writ to the sheriff: 2. Seizure: 3. The possible payment of money after seizure: 4. If no payment, sale. The first step does not entitle the sheriff to poundage; and if he does not seize, Nash v. Dickenson Law Rep 2 C.P. 252 is an authority that he is not entitled to poundage. Although he seizes, nothing may be realised, because the seizure may be wrongful; it may be withdrawn by direction of law, then the sheriff would receive no poundage. Then comes the case after seizure. The money may be paid by the execution debtor either directly or indirectly: directly by virtue of the seizure to the sheriff; indirectly where payment is made by means of a compromise which is the consequence of the seizure; in either of those cases the sheriff is entitled to poundage. If a sale takes place, again the sheriff is entitled to poundage."
14 In The Sheriff of Western Australia vMonadelphous Engineering Associates (NZ) Ltd (In Liq), unreported; FCt SCt of WA; Library No 920446; 28 August 1992, Anderson J, with whom Malcolm CJ and Walsh J agreed, held (albeit obiter) that when the Sheriff, in answer to a writ of fi fa serves a copy of the writ on the Registrar of Titles and causes the Registrar to enter the writ in the register book on the relevant certificate of title, the Sheriff levies execution against the land in question. As Anderson J said:
(Page 11)
- "This is the means by which the Sheriff may seize land in Western Australia: Transfer of Land Act s 133."
15 In other words, "execution" is a continuing process which commences with seizure of a property and leads ultimately to its sale. In my view, it matters not that there is a deemed, rather than an actual seizure: the Regulations apply in both circumstances.
16 Mr Solomon relies on two authorities which, in my view, support the proposition that execution is a continuing process. The first of those authorities is In re a Company [1915] 1 Ch 520. There, at 527, Phillimore LJ said:
"Now the words 'execution' and 'enforcement of a judgment' are terms of art. 'Execution' is I think meant for the old common law process by which the Sheriff in obedience to one of the old common law writs procures for a judgment creditor the fruits of his judgment."
17 Similarly, in WT Lamb & Sons v Rider [1948] 2 KB 331, at 337, in a joint judgment, Scott LJ and Romer J said:
"Execution is essentially a matter of procedure - machinery which the Court can, subject to the rules from time to time in force, operate for the purpose of enforcing its judgments or orders."
- That proposition is paraphrased in Seaman on Civil Procedure in Western Australia at [47.0.1].
18 In my view, therefore, once the machinery has been set in motion by the delivery of the writ of fi fa to the Sheriff (agreed fact 3) the process of execution has commenced. This proposition is supported further by O 82 r 13, which applies where "execution has been levied upon any property and the Sheriff upon request has withdrawn from such property": that is, before the property has been sold. In those circumstances, the Sheriff is taken to have been engaged in the process of execution, down to the point of his withdrawal.
19 I am therefore satisfied that the Sheriff did embark upon the process of execution in this case.
20 The question then arises, whether moneys were received by the plaintiffs, following the sale of the seized property "under or by reason of" the execution of the writ of fi fa.
(Page 12)
21 I think that question must be answered in the affirmative, also on the authority of Mortimore v Cragg (supra). In my view, it matters not that the sale of the property was negotiated without the Sheriff's involvement.
22 As Bramwell LJ said in Mortimore v Cragg (supra) at 219 "It is the seizure made by the sheriff that produces the money". And Cotton LJ said at 220:
"Whenever process is made effectual by payment of money, the sheriff is entitled to his poundage."
23 In other words, if a property subject to execution is sold by negotiation with the judgment creditor, it is the payment of the price which makes the execution process effectual. Prima facie, the execution of the writ of fi fa is the reason the judgment creditor is paid.
24 That might not be so if (for example) the sale had been negotiated before the process of execution commenced. However, that is not this case.
25 The sale, while not effected by the Sheriff, was therefore negotiated under the shadow of the writ of fi fa. I therefore think it correct to say that the money was received by the plaintiffs by reason of the process of execution.
26 For these reasons, I do not accept Mr Solomon's submission that the poundage charged by the Sheriff is in the nature of a tax. In essence, it is the price payable by a judgment creditor for the facility made available by the State to assist him to enforce his judgment.
27 Mr Solomon's further contention is that even if poundage was properly charged by the Sheriff, Solomon Brothers should not be liable to make payment because they did not undertake to the Sheriff that they would do so. Mr Solomon submits that the Sheriff should look to the former clients of Solomon Brothers, not his firm.
28 Mr Solomon's submission is based on O 82 r 11 which provides:
"(1) Upon request being made for the execution or service of any process or document, or for any work for which fees are properly chargeable in the sheriff's office, the sheriff may require a deposit of money to meet such fees except poundage. He may also require an undertaking in writing from the solicitor or if no solicitor is acting, from the
- party making the request, to pay any further fees or charges which may become payable beyond the amount so deposited."
29 Order 82 r 16 provides:
"If any solicitor, who has made a request for the execution or service of any process or document, or for any work for which fees are properly chargeable in the sheriff's office, makes default in payment of any of the fees or charges properly chargeable, for a period of 7 days after demand in writing by the sheriff, the sheriff may report to the Court the name of the solicitor so making default, and the Court may thereupon make all necessary orders to enforce payment by the solicitor of such fees or charges."
30 Mr Solomon submits that if O 82 r 16 was intended to impose personal liability on a solicitor whose request to the Sheriff was made on behalf of his client, then r 11 would be otiose. That is because it would be pointless to require an undertaking from a solicitor under r 11 if he was already personally liable under r 16. As Mr Solomon says, and I accept, it is a fundamental rule of construction that all provisions in an enactment should have some work to do: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] - [70].
31 Further, Mr Solomon submits, r 16 would run counter to the principles of agency which require the principal to be liable, not the agent.
32 In my view, the answer to Mr Solomon's first submission is that the Sheriff may not require an undertaking from the solicitor in relation to poundage. Rule 11 provides that the Sheriff may require a deposit of money to meet fees except poundage: and that the Sheriff may require an undertaking from the solicitor to pay any further fees or charges which may become payable beyond the amount so deposited.
33 It follows that the scope of r 11 is narrower than that of r 16, which imposes a liability on the requesting solicitor to make payment of any fees or charges properly chargeable, including poundage.
34 The answer to Mr Solomon's second submission is, I think, that these provisions do indeed effect a limited statutory modification to the law of agency.
(Page 14)
35 I therefore conclude that, in this case, the Sheriff properly charged poundage on executing a writ of fieri facias by reason of which money was received by the plaintiffs, as judgment creditors, and that, because Solomon Brothers requested the Sheriff to act, they are liable to make payment.
36 For the avoidance of doubt, I should add that Solomon Brothers are not relieved of that obligation by reason of the fact that they provided full particulars of the arrangement reached between the plaintiffs as execution creditors and the defendants as execution debtors within 14 days of their request to the Sheriff to withdraw from execution. Order 82 r 13 applies in those circumstances. However, it operates only to remove Solomon Brothers' obligation to pay forthwith upon the Sheriff's withdrawal.
37 It is agreed between the Sheriff and Solomon Brothers that the costs of this application should follow the event. The Sheriff has made out his case. Solomon Brothers must therefore pay the poundage of $1368.39 claimed by the Sheriff and his costs of this application, to be taxed if not agreed.
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