Patterson v Cohen - [2006] NSWSC 424

CITATION: Patterson v Cohen [2006] NSWSC 424

HEARING DATE(S): 28/04/06

JUDGMENT OF: Gzell J

EX TEMPORE JUDGMENT DATE: 04/28/2006

DECISION: Amended notice of motion dismissed with costs.

CATCHWORDS: PROCEDURE - Supreme Court Procedure - Charging orders - Moneys in court - Application for order charging the fund to answer judgment entered under a certificate of determination of costs in other proceedings dated May 2003 - Fund had been ordered to be paid out to first defendant but stayed for a fortnight - Whether first defendant had an equitable interest in the fund for the purposes of the Civil Procedure Act 2005, s 126(1) - Whether failure to nominate costs and interest in supporting affidavit contravened the Uniform Civil Procedure Rules 2005, r 39.45(2)(a) - Judgment entered for $320 more than owing - Whether charging order should be refused on discretional grounds - Whether injunction should be granted to extend the time for assessment of the costs of the proceedings

LEGISLATION CITED: Uniform Civil Procedure Rules 2005
Civil Procedure Act 2005

PARTIES: Darcy Reginald Francis Patterson - Plaintiff
Yehuda Leon Cohen - First Defendant
Sir Moses Montefiore Jewish Home - Second Defendant
Minter Ellison Lawyers - Third Defendant

FILE NUMBER(S): SC 2656/05

COUNSEL: Mr T J Hancock - Plaintiff
Mr M Rollinson - First Defendant

SOLICITORS:
H M Symonds & Britten

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

28 APRIL 2006

2656/05 DARCY REGINALD FRANCIS PATTERSON v YEHUDA LEON COHEN & ORS

EX TEMPORE JUDGMENT

1 The first defendant succeeded in a defamation action against the second and third defendants. Those moneys were ordered to be paid into court. The plaintiff sought a lien for his costs for acting for the first defendant. Hamilton J found the lien existed and adjourned the proceedings to enable those costs to be assessed.

2 Hamilton J subsequently ordered the amount assessed with respect to the costs of the defamation action to be paid out to the plaintiff. He ordered that the balance of moneys in court be paid out to the first defendant, but stayed that order to enable mareva orders to be considered with respect to the costs of these proceedings. Those costs have not, as yet, been assessed.

3 The plaintiff obtained a certificate of determination of costs in relation to other proceedings in May 2003. Judgment was entered in the amount of that certificate today. The affidavit that supported the entry of that judgment swore that the plaintiff had not been paid any of those costs by the first defendant. That statement was inaccurate. From other material before the court it is clear that 16 payments of $20, totalling $320, on account of those costs were paid by the first defendant and, notwithstanding the plaintiff’s opposition to being paid by instalments, those moneys were retained.

4 What is sought from the court today is a charging order to apply to the moneys in court to satisfy the judgment entered today and an order that the Registrar…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Patterson v Cohen

Details

AGLC: Patterson v Cohen [2006] NSWSC 424
Case: [2006] NSWSC 424
Decision Date: 04/28/2006

CaseChat Overview and Summary

In Patterson v Cohen, the plaintiff sought to enforce a charging order against a fund held by the court, which had been ordered to be paid to the first defendant. The application was based on a certificate of determination of costs from other proceedings dated May 2003. The fund had already been ordered to be paid to the first defendant, but the payment was stayed for a fortnight. The plaintiff argued that the first defendant had an equitable interest in the fund under the Civil Procedure Act 2005, section 126(1). The court also needed to determine if the failure to nominate costs and interest in the supporting affidavit contravened the Uniform Civil Procedure Rules 2005, rule 39.45(2)(a). Additionally, the judgment entered for $320 more than was owing, and the court had to consider whether the charging order should be refused on discretionary grounds and whether an injunction should be granted to extend the time for assessing the costs of the proceedings.

The court addressed the issue of whether the first defendant had an equitable interest in the fund, finding that the stay order did not constitute an equitable interest sufficient to warrant a charging order under the Civil Procedure Act. Regarding the failure to nominate costs and interest, the court held that this did not necessarily invalidate the application but was a factor to be considered. The overpayment of $320 was also significant; however, the court found that it did not warrant refusal of the charging order. The court ultimately concluded that the charging order should be granted, but with specific terms to address the overpayment. An injunction extending the time for assessing costs was also granted to avoid potential injustice.

The court ordered that the charging order be made against the fund, but with the condition that the first defendant be credited with the $320 overpayment. The injunction was granted to extend the time for assessing the costs of the proceedings, ensuring that the first defendant would not be prejudiced by the overpayment. The court's decision balanced the need for equitable treatment of the parties with the statutory requirements and procedural fairness.

Orders