Royal Institution of Chartered Surveyors v Stephens

[2019] NSWSC 1871

Supreme Court

New South Wales

Medium Neutral Citation:	Royal Institution of Chartered Surveyors v Stephens [2019] NSWSC 1871
Hearing dates:	18 December 2019
Date of orders:	18 December 2019
Decision date:	18 December 2019
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	1.   Notice of motion filed 18 July 2019 is dismissed. 2.   The defendant is to pay the plaintiff’s costs of the motion.
Catchwords:	FOREIGN JUDGMENT – application to set aside – no question of principle
Legislation Cited:	Foreign Judgments Act 1991 (Cth) Judgments Act 1838 (UK)
Cases Cited:	Norsemeter Holdings AS v Pieter Boele (No 1) [2002] NSWSC 370
Category:	Procedural and other rulings
Parties:	Royal Institution of Chartered Surveyors (Plaintiff) Roderick James Stephens (Defendant)
Representation:	Counsel: C Lee (Plaintiff/Respondent) M Gunning (Defendant/Applicant)   Solicitors: HWL Ebsworth Lawyers (Respondent) Joseph Grassi + Associates (Applicant)
File Number(s):	2019/125969

EX TEMPORE Judgment

1. By a notice of motion filed 18 July 2019 the defendant, Roderick James Stephens, seeks an order setting aside a judgment or order obtained by the Royal Institution of Chartered Surveyors (the “Royal Institution”) in this court on 6 June 2019. In the alternative, the motion seeks an order that the judgment or order of that date be stayed.

2. The judgment obtained by the Royal Institution was for a specified sum. It was entered pursuant to s 6 of the Foreign Judgments Act 1991 (Cth). It was in turn based on two costs certificates issued out of the High Court of Justice of England and Wales.

3. To explain and address the grounds upon which it is sought to have the judgment set aside, as well as the reasons for the refusal of an application made by Mr Stephens to adjourn this hearing, it is necessary to explain the background in some detail.

4. At some point, Mr Stephens became a member of the Royal Institution. A disciplinary complaint was made against him. A panel was convened to address that complaint. Prior to the hearing of the substantive complaint, Mr Stephens brought two unsuccessful judicial review applications. The first application which sought permission for judicial review was brought in January 2017. Broadly, it concerned the decision to refer the complaint against him to a disciplinary panel. In a procedure that is the envy of this Court, the Administrative Court of the Queens Bench Division of the High Court of Justice is empowered to give short reasons refusing permission for judicial review. That power was exercised by Morris J. On 16 October 2017, Sycamore J refused an application by the Royal Institution for a lump sum assessment of its costs and instead referred it to an assessment. On 8 November 2018 a document entitled “Final Costs Certificate” was issued in respect of the costs of that application.

5. As I will explain, the dispute over the scope and effect of that certificate has fallen away. It suffices to state that the certificate records that Mr Stephens was required to pay the sum of £26,512.40 to the Royal Institution within 14 days of the date of the order. It otherwise specified that interest would run under the certificate for the amount of the bill, excluding the costs of the assessment, from 16 October 2017 and that in respect of the costs of the assessment totalling £2,543, interest would run from the date of the certificate.

6. Just prior to the hearing of the substantive complaint against him, on 8 March 2018 Mr Stephens commenced another application seeking permission for judicial review. This application concerned a decision to anonymise the names of the complainants in the disciplinary proceedings. The proceedings seeking permission for judicial review were fixed for hearing on 15 March 2018. On that date, the court refused permission for judicial review. It ordered the claimant, namely, Mr Stephens, to pay the Royal Institution's costs of preparing the acknowledgement of service, such costs to be subject to detailed assessment if not agreed.

7. Ultimately that process of assessment led to the issue of a document entitled a “Default Costs Certificate” on 30 July 2018 the relevant part of which was in the following form:

8. After the refusal of the permission to seek judicial review, the disciplinary proceedings against Mr Stephens continued. It resulted in a decision of the disciplinary panel being issued on 24 May 2019. As I understand it, at some stage during the hearing before that panel Mr Stephens terminated his legal representation. He appears to have either acted for himself or not participated in the hearing.

9. In April 2019, the Royal Institution applied to this Court for the registration of a judgment, being the amount it claims to be payable by reference to the two costs certificates noted above.

10. On 6 June 2019, a judgment or order was issued by this Court for £64,559.22 together with other costs in Australian dollars. The judgment or order issued by the court confirms that the judgment amount comprised the amounts of the two certificates together with interest of £2,816.56 under the Default Costs Certificate issued on 30 July 2018 and £2,973.94 under the Final Costs Certificate issued on 8 November 2018. Both of those interest figures are calculated as running up to 18 April 2019.

11. The affidavits read on behalf of the Royal Institution on this application reveal that, in relation to the Final Costs Certificate, interest was calculated under the relevant rate provided for in s 17 of the Judgments Act 1838 (UK) from 16 October 2017. Initially complaint was made by Mr Stephens about that, but that complaint was not pressed at the hearing. The affidavits read by the Royal Institution also confirm that the interest of £2,816.56 under the Default Costs Certificate was calculated under s 17 of the Judgments Act 1838 (UK) from 15 March 2018, being the date on which permission to make the second judicial review application was refused and the costs order was made. As I will explain, one aspect of this application concerns that interest calculation.

12. Section 7 of the Foreign Judgments Act specifies various grounds upon which a judgment debtor can apply to have the registration of a foreign judgment set aside. Of present relevance is that s 7(2)(a) provides that this Court must set aside the registration of a judgment if it is satisfied:

(ii)   that the judgment was registered for an amount greater than the amount payable under it at the date of registration, and

…

(v)   that the judgment debtor, being the defendant in the proceedings in the original court, did not, whether or not process has been duly served on the judgment debtor in accordance with the law of the country of the original court, receive notice of those proceedings in sufficient time to enable the judgment debtor to defend the proceedings and did not appear.

13. Otherwise I note that s 9(1) provides that:

If the registration of a judgment is set aside under subparagraph 7(2)(a)(ii), the court in which the judgment was registered must, on the application of the judgment creditor, order that the judgment be registered in respect of the amount payable under the judgment at the date of the application.

14. In his admirably clear and confined submissions, counsel for Mr Stephens initially identified three bases upon which the judgment entered in this court should be set aside. The first two seeks to rely on s 7(2)(a)(ii) and concerned the calculation of interest. Each of those points related to the calculation of interest under each of the costs certificates.

15. As noted, at the hearing of the motion Mr Gunning did not press the argument in respect of the calculation of interest under the Final Costs Certificate. However, in relation to the Default Costs Certificate, Mr Gunning submitted that interest should not have been calculated from 15 March 2018, but instead should have been calculated from the date of the certificate, being 30 July 2018.

16. There was tendered various parts of the relevant rules of the High Court of Justice governing judgments and costs certificates. It is appropriate to note that Pt 40.8(1) provides that, where interest is payable on a judgment, the interest shall begin to run from the date the judgment is given unless a rule provides otherwise or “the court orders otherwise”. Hence there is no doubt that in making an order or judgment the Court can specify that interest should run from a date that is earlier than the date of the judgment.

17. Parts 44 and 47 of those rules deal with the procedures for costs assessments. It is unnecessary to describe those in any detail other than to note that Pt 47.11 deals with default costs certificates, being the kind of certificate the subject of this argument. Subrule 47.11(2) provides:

“A default costs certificate will include an order to pay the costs to which it relates.”

18. This confirms that, at least so far as the relevant costs certificate includes a specification of an amount of costs to be paid, it is an order of the court and is thus capable of being the subject of registration under the Foreign Judgments Act.

19. The essence of Mr Gunning’s argument in relation to the Default Costs Certificate is that in paragraph 1 where it states that the “date from which any entitlement to interest under this certificate is to run is: as to the amount of the bill as assessed, excluding the costs of the assessment; [the date of the order]”, this is a reference to the order included in the certificate itself, such that the relevant “date of the order” is 30 July 2018. Counsel for the Royal Institution, Ms Lee, submitted that that date is clearly a reference to the date that the substantive costs order was made when permission to seek judicial review was refused, namely, 15 March 2018.

20. While the Default Costs Certificate is not a model of clarity, either by reference to its own terms or by reference to everything that surrounds it, I am satisfied that the reference to the “date of the order” is a reference to the date of the substantive costs order and not the date of the order contained within the certificate.

21. Within the certificate it is important to note that just above the relevant statement is the portion that reads “you must pay this amount to the defendant [within 14 days from the date of this order]”. Thus, there is a difference between “this order” and “the order”. In my view that points quite strongly to the reference to the “date of the order” being different to the date of “this order”, that being the order contained in the certificate. Further, if one steps back and considers that what is being addressed is the interest on costs that have been incurred up to and prior to the time in which permission to seek judicial review was refused then, as a matter of common sense, the relevant date from when interest would run would be no later than the last date in which the Royal Institution incurred the relevant costs, namely, 15 March 2018. Hence I am satisfied that the appropriate date under the costs certificate from which interest was to be calculated was the date when permission for judicial review was refused.

22. Returning to s 7(2)(a)(ii) of the Foreign Judgments Act it follows that I am not satisfied that the judgment that was registered in this Court was for an amount greater than the amount payable under “it”, namely, the relevant order or judgment of the foreign court, at the date of registration.

23. Counsel for Mr Stephens also pressed, albeit faintly, an argument that the judgment should be set aside under s 7(2)(a)(v) because Mr Stephens did not receive sufficient notice of the conduct of the proceedings in the foreign court. To his credit, and consistent with his ethical obligations, counsel conceded that his argument had a number of difficulties, specifically the existence of authority concerning s 7(2)(a)(v) to the effect that the provision (or its common law equivalent) cannot be invoked in circumstances where a person had notice of proceedings and for a while participated and then withdrew their legal representation (citing Norsemeter Holdings AS v Pieter Boele (No 1) [2002] NSWSC 370 at [26], [40] and [41]).

24. This concession was properly made. In fact there are a number of difficulties for Mr Stephens in invoking s 7(2)(a)(v). First, on any view, he was not a “defendant” in the proceedings in the original court. Instead, he was the moving party in that it was he who sought permission for judicial review.

25. Second, in his own affidavit, the substance of Mr Stephens' complaint about notice appears to be that he was not personally served with various documents concerning the costs assessment process that I described earlier. However, he concedes that by the time he commenced his disciplinary hearing in March 2018 he knew that he was the subject of orders for the payment of significant costs associated with his two unsuccessful judicial review proceedings. As stated, for a period thereafter, he was represented by a legal representative. There is nothing in the material to suggest that when that legal representative discontinued acting for him that no address for service or similar was provided to the relevant court. In other words, the position really rises no higher than Mr Stephens being aware he had commenced proceedings that were unsuccessful, that he had incurred costs orders and that something was happening to quantify them, but still he chose not to involve himself in the assessment process. Those circumstances could never get even close to satisfying s 7(2)(a)(v).

26. In that regard, as noted in the hearing before me today, counsel for Mr Stephens sought an adjournment. The basis for the application was that Mr Stephens wished to obtain further documents about the costs assessment process to somehow aid his application to set the judgment aside. Again, commendably, but most importantly consistent with his obligations, counsel conceded he could not identify any of the grounds in s 7(2) of the Foreign Judgments Act to which the enquiries would be directed. For my part I cannot conceive of any. When it is borne in mind that the role of this Court is not to review any aspect of the merits of the process of costs assessment and, given the history of Mr Stephens' initiation of the proceedings that gave rise to the costs certificate, I refused the application as being an exercise in futility.

27. Lastly, for the sake of completeness, I note that in his affidavit Mr Stephens raised a concern about the addition of value added tax (“VAT”) to the legal services which were the subject of the costs certificate. He noted that as he is resident in Australia he is not liable to pay it. Counsel for Mr Stephens did not press any point about this. It is difficult to see how it is encompassed by s 7(2) of the Foreign Judgments Act. In any event, I note that it appears to involve a misconception that Mr Stephens is somehow reimbursing the payment of legal costs for services rendered to him. In fact, he was ordered to reimburse the Royal Institution for legal services rendered to it. Given its name, it would be staggering if it was not a resident of the United Kingdom.

28. Accordingly, the notice of motion filed on 18 July 2019 will be dismissed.

[Counsel addressed on costs.]

29. The Royal Institution seeks its costs of the motion and seeks them on an indemnity basis. It must follow from the conclusions I have reached that an order for costs will be made. However, it has not been demonstrated that any aspect of the manner in which this motion was conducted involved such a default that an order for indemnity costs should be made.

30. True it is there was a lengthy affidavit filed. However, the material was not difficult to address and was well-known to the Royal Institution. The Royal Institution was put to some extra proof of the basis on which it charged interest but that was only expanding upon what it had to demonstrate to obtain judgment in this Court in the first place.

31. Accordingly, I order Mr Stephens to pay the Royal Institution's costs of his motion.

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Decision last updated: 20 December 2019