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Trad v Jones

Trad v Jones

Case [2021] NSWDC 262 18 June 2021

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Trad v Jones [2021] NSWDC 262
Hearing dates: 18 June 2021
Date of orders: 18 June 2021
Decision date: 18 June 2021
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Order:
(1) Applicants’ Notice of Motion is dismissed; leave to enforce the judgment under s 135 of the Civil Procedure Act 2005 (NSW) (CPA) and Uniform Civil Procedure Rules 2005 (NSW) r 39.1 (1)(a) is refused.
(2) Proceedings 2018/145388 and 2018/145476 are permanently stayed under s 135 of the Civil Procedure Act 2005 (NSW).
(3) The applicants of the notice of motion are to pay the defendants’ costs of the Notice of Motion.

Catchwords:
PRACTICE AND PROCEDURE – application to amend the name of the person entitled to costs in a costs assessment and for enforcement of the costs assessment against the defendants – whether the purported assignment of the entitlement by the plaintiff’s trustee in bankruptcy to the plaintiff’s solicitors was effective in circumstances where the total costs exceeded that sum – assignment ineffective as trustee had no property to assign – alternative finding that there should be a set-off and permanent stay

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 135

Cases Cited:
Akki Pty Ltd v Martin Hall Pty Ltd (1994) 35 NSWLR 470
Aristocrat Technologies Australia Pty Ltd v Allam [2017] FCA 812
Australian Receivables Ltd v Tekitu Pty Ltd (Subject to Deed of Company Arrangement) (Deed Administrators Appointed) (2012) 260 FLR 243
Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96
Firth v Centrelink (2002) 55 NSWLR 451
Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172
Kison v Papasian (1994) 61 SASR 567; [1994] SASC 4476
Macura v Sarasevic (No 2) [2019] NSWSC 1621
Stojanovski v Stojanovski (No 3) [2020] NSWSC 1540
Trad v Harbour Radio Pty Ltd [2016] NSWCA 80
Ventura v Higgins [2018] NSWSC 909

Category: Principal judgment
Parties:
Plaintiff: No appearance
Applicants on the Notice of Motion:
Armando Gardiman, Thady Blundell and Terence Goldberg trading as Turner Freeman Lawyers
Defendants:
First defendant: Alan Jones
Second defendant: Harbour Radio Pty Ltd
Representation:
Counsel:
Applicants on the Notice of Motion: Mr A Bailey
Defendants: Ms S Scott
Solicitors:
Applicant: O’Neill Partners
Defendants: Ashurst LLP

File Number(s): 2018/00145388 & 2018/00145476

Judgment

The application before the court

These are proceedings for enforcement of costs judgments pursuant to s 135 of the Civil Procedure Act 2005 (NSW).
The applicants (“Turner Freeman”) by Notice of Motion filed on 1 March 2021, seek orders as follows:

“1. The name of the judgment creditor be amended to Armando Gardiman, Thady Blundell and Terence Goldberg trading as Turner Freeman Lawyers.
2. Leave to enforce the judgment in these proceedings under s135 of the Civil Procedure Act, 2005 and Rule 391(1)(a) of UCPR, 2005.”

The defendants oppose the application, arguing the purported assignment by the judgment creditor is ineffective and should be set aside and, alternatively that, if the trustee in bankruptcy did have property to assign, the court…

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 Trad v Jones

Details

AGLC: Trad v Jones [2021] NSWDC 262
Case: [2021] NSWDC 262
Decision Date: 18 June 2021

CaseChat Overview and Summary

The applicants, Trad, sought to amend the name of the party entitled to costs in a costs assessment and enforce the assessment against the defendants. The case was heard in the Supreme Court of New South Wales. The dispute arose from an application to amend the name of the person entitled to costs in a costs assessment and for enforcement of the costs assessment against the defendants. The applicants argued that their trustee in bankruptcy had assigned the entitlement to their solicitors, but the total costs exceeded the sum available. The defendants contended that the assignment was ineffective as the trustee had no property to assign, and alternatively, there should be a set-off and permanent stay.

The court held that the assignment was ineffective as the trustee had no property to assign, and the applicants had no entitlement to costs. The court also found that there should be a set-off and permanent stay of the proceedings, as the applicants had acted in bad faith by seeking to enforce the costs assessment against the defendants. The court considered the conduct of the applicants in seeking to enforce the costs assessment and the potential prejudice to the defendants if the application was successful. The court concluded that the applicants had no entitlement to costs and that a set-off and permanent stay was appropriate.

The court dismissed the applicants' Notice of Motion, refused leave to enforce the judgment under the Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules 2005 (NSW) r 39.1 (1)(a), and permanently stayed the proceedings. The applicants were ordered to pay the defendants' costs of the Notice of Motion. The court considered the conduct of the applicants and the potential prejudice to the defendants in reaching its decision. The court held that the applicants had no entitlement to costs and that a set-off and permanent stay was appropriate. The applicants' attempt to enforce the costs assessment against the defendants was dismissed, and the proceedings were permanently stayed.

Orders

Orders of the court

Order:

(1) Applicants’ Notice of Motion is dismissed; leave to enforce the judgment under s 135 of the Civil Procedure Act 2005 (NSW) (CPA) and Uniform Civil Procedure Rules 2005 (NSW) r 39.1 (1)(a) is refused.

(2) Proceedings 2018/145388 and 2018/145476 are permanently stayed under s 135 of the Civil Procedure Act 2005 (NSW).

(3) The applicants of the notice of motion are to pay the defendants’ costs of the Notice of Motion.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Trad v Jones [2021] NSWDC 262

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 20 of 20 shown

Stojanovski v Stojanovski (No 3)
[2020] NSWSC 1540 Para 20

…Kison v Papasian has been cited with approval on this issue in Stojanovski v Stojanovski (No 3) [2020] NSWSC 1540 at [223] – [224], and I note the collection of other recent cases by Ward CJ in Eq in Macura v Sarasevic (No 2) [2019] NSWSC 1621 at [11], following the same excerpt from Jordan CJ in Ex parte Patience;…
Macura v Sarasevic (No 2)
[2019] NSWSC 1621 Para 20

…tojanovski (No 3) [2020] NSWSC 1540 at [223] – [224], and I note the collection of other recent cases by Ward CJ in Eq in Macura v Sarasevic (No 2) [2019] NSWSC 1621 at [11], following the same excerpt from Jordan CJ in Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96 at 100.…
Ventura v Higgins
[2018] NSWSC 909 Para 27

…First, as to this Court’s jurisdiction to make orders for a set-off, I note the encouraging words of Robb J in Ventura v Higgins [2018] NSWSC 909 (“ Ventura ”) as to the comprehensive nature of the powers afforded to this court under s 135 of Civil Procedure Act . The discretion to make such an order is to be exerc…
Aristocrat Technologies Australia Pty Ltd v Allam
[2017] FCA 812 Para 26

…der whether Turner Freeman should be entitled to the lien they claim if a set-off is not available: Aristocrat Technologies Australia Pty Ltd v Allam [2017] FCA 812 at [10]. Is there an entitlement to a set-off?…
Trad v Harbour Radio Pty Ltd
[2016] NSWCA 80 Para 9

…to 28). Although the plaintiff, unsuccessfully, sought orders staying the judgment debt in the defamation proceedings ( Trad v Harbour Radio Pty Ltd [2016] NSWCA 80), he simply incurred further costs (which have yet to be assessed but which are in the order of $37,764 with an additional $770 for a separate applic…
Australian Receivables Ltd v Tekitu Pty Ltd (Subject to Deed of Company Arrangement) (Deed Administrators Appointed)
[2012] NSWSC 170 Para 16

…rd J (as her Honour then was) in Australian Receivables Ltd v Tekitu Pty Ltd (Subject to Deed of Company Arrangement) (Deed Administrators Appointed) (2012) 260 FLR 243 at paragraphs 51 to 52 as follows:…
Frumar v The Owners of Strata Plan 36957
[2010] NSWCA 172 Para 24

…There is some uncertainty as to the status of the costs assessment as a judgment ( Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172 at [37] – [38]) and, after hearing submissions from the parties, it was agreed that the appropriate order was that the proceedings be permanently stayed…
Team Dynamik Racing Pty Ltd v Longhurst Racing Pty Ltd
[2008] QSC 36

…sition to be correct in Miller (at [24]) and Fryberg J exercised just such a jurisdiction in Team Dynamik Racing Pty Ltd v Longhurst Racing Pty Ltd [2008] QSC 36 at pp 9-10. In Flinn v Flinn [1999] 3 VR 712 at 761 the Victorian Court of Appeal achieved a similar outcome. From a theoretical perspective, it seems…
Miller v Director of Public Prosecutions (No 2)
[2004] NSWCA 249

…etion is to be exercised ‘according to what is equitable in the particular circumstances’: Miller v Director of Public Prosecutions (No. 2) [2004] NSWCA 249 (‘ Miller’ ) at [27] per Young CJ in Eq. And, at least where costs are sought to be set off against costs, this is likely to involve the same kinds of consider…
Firth v Centrelink & Anor (No2)
[2002] NSWSC 850 Para 17

…The nature of a solicitor’s lien over money recovered for the solicitor’s client is set out in Firth v Centrelink (2002) 55 NSWLR 451 at [35], where Campbell J set out a series of propositions which included the following:…
Firth v Centrelink
[2002] NSWSC 564 Para 17

…The nature of a solicitor’s lien over money recovered for the solicitor’s client is set out in Firth v Centrelink (2002) 55 NSWLR 451 at [35], where Campbell J set out a series of propositions which included the following:…
Flinn v Flinn
[1999] VSCA 134

…rg J exercised just such a jurisdiction in Team Dynamik Racing Pty Ltd v Longhurst Racing Pty Ltd [2008] QSC 36 at pp 9-10. In Flinn v Flinn [1999] 3 VR 712 at 761 the Victorian Court of Appeal achieved a similar outcome. From a theoretical perspective, it seems to me, as indeed it seemed to Fryberg J, that…
Kison v Papasian
[1994] SASC 4476 Para 18

…The facts in Kison v Papasian (1994) 61 SASR 567; [1994] SASC 4476 were that, after a judge had reserved judgment, the respondent was made bankrupt. Judgment with an order for costs was then delivered in favour of the respondent. The trustee in bankruptcy declined to take steps to enforce the order for costs, becau…
Worrell v Power & Power
[1993] FCA 827

…incurred, but can recover the costs from the debt which is the result of his efforts: Guy v Churchill (1887) 35 Ch D 489; Worrell v Power & Power (1993) 46 FCR 214. The trustee in bankruptcy takes that debt subject to the equitable right of the solicitor to be paid his costs, and if the amount of the solicitor’s cos…
Attorney-General v Earl of Sandwich
[1932] HCA 28

…f being constantly briefed by a solicitor is to “always remember the costs” and who are not aware of the statement of Lord Justice James in Attorney-General v Earl of Lonsdale (1870) 23 LTR 794 that he had been told forty years earlier (at 794-795): “… that the questions in respect to the importance attached to them, and the zeal with which…
Makinson v The Minister
(1940) 40 SR 96 Para 20

…cent cases by Ward CJ in Eq in Macura v Sarasevic (No 2) [2019] NSWSC 1621 at [11], following the same excerpt from Jordan CJ in Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96 at 100.…
[1995] 1 WLR 918
[1995] 1 WLR 918

…n the United Kingdom, Currie; Lockley v National Blood Transfusion Service [1992] 1 WLR 492 (‘ Lockley’ ) at 497 per Scott LJ; Brookes v Harris [1995] 1 WLR 918 at 925 per Ferris J. In Australia, the discretion is to be exercised ‘according to what is equitable in the particular circumstances’: Miller v Director of…
1 East 464
1 East 464

…t debtor to the client after notice of the solicitor's claim is no answer to an application for such a rule: Read v Dupper 6 TR 361; Ormerod v Tate 1 East 464; Ross v Buxton 42 Ch D 190. Further, if the client and a judgment debtor make a collusive arrangement for the purpose of defeating the solicitor's righ…
[1992] 1 WLR 492
[1992] 1 WLR 492

…osition that a discretion is involved in its exercise: see, for example in the United Kingdom, Currie; Lockley v National Blood Transfusion Service [1992] 1 WLR 492 (‘ Lockley’ ) at 497 per Scott LJ; Brookes v Harris [1995] 1 WLR 918 at 925 per Ferris J. In Australia, the discretion is to be exercised ‘according to…
Guy v Churchill
(1889) 40 ChD 481

…required to prove in the bankruptcy for the amount of costs incurred, but can recover the costs from the debt which is the result of his efforts: Guy v Churchill (1887) 35 Ch D 489; Worrell v Power & Power (1993) 46 FCR 214. The trustee in bankruptcy takes that debt subject to the equitable right of the solicitor to be p…

Legislation cited in this decision · 2

Civil Procedure Act 2005 (NSW)
135 2 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
39.1 1 mention (from Para 1)

Medium Neutral Citation:	Trad v Jones [2021] NSWDC 262
Hearing dates:	18 June 2021
Date of orders:	18 June 2021
Decision date:	18 June 2021
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Order: (1) Applicants’ Notice of Motion is dismissed; leave to enforce the judgment under s 135 of the Civil Procedure Act 2005 (NSW) (CPA) and Uniform Civil Procedure Rules 2005 (NSW) r 39.1 (1)(a) is refused. (2) Proceedings 2018/145388 and 2018/145476 are permanently stayed under s 135 of the Civil Procedure Act 2005 (NSW). (3) The applicants of the notice of motion are to pay the defendants’ costs of the Notice of Motion.
Catchwords:	PRACTICE AND PROCEDURE – application to amend the name of the person entitled to costs in a costs assessment and for enforcement of the costs assessment against the defendants – whether the purported assignment of the entitlement by the plaintiff’s trustee in bankruptcy to the plaintiff’s solicitors was effective in circumstances where the total costs exceeded that sum – assignment ineffective as trustee had no property to assign – alternative finding that there should be a set-off and permanent stay
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 135
Cases Cited:	Akki Pty Ltd v Martin Hall Pty Ltd (1994) 35 NSWLR 470 Aristocrat Technologies Australia Pty Ltd v Allam [2017] FCA 812 Australian Receivables Ltd v Tekitu Pty Ltd (Subject to Deed of Company Arrangement) (Deed Administrators Appointed) (2012) 260 FLR 243 Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96 Firth v Centrelink (2002) 55 NSWLR 451 Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172 Kison v Papasian (1994) 61 SASR 567; [1994] SASC 4476 Macura v Sarasevic (No 2) [2019] NSWSC 1621 Stojanovski v Stojanovski (No 3) [2020] NSWSC 1540 Trad v Harbour Radio Pty Ltd [2016] NSWCA 80 Ventura v Higgins [2018] NSWSC 909
Category:	Principal judgment
Parties:	Plaintiff: No appearance Applicants on the Notice of Motion: Armando Gardiman, Thady Blundell and Terence Goldberg trading as Turner Freeman Lawyers Defendants: First defendant: Alan Jones Second defendant: Harbour Radio Pty Ltd
Representation:	Counsel: Applicants on the Notice of Motion: Mr A Bailey Defendants: Ms S Scott Solicitors: Applicant: O’Neill Partners Defendants: Ashurst LLP
File Number(s):	2018/00145388 & 2018/00145476