Ventura v Higgins

Ventura was successful in a claim against Higgins and another entity in 2012. The corporate defendant was successful in a cross-claim against the plaintiffs. The plaintiffs had their costs assessed from 2013 onwards but the cross-claimant refused to have its costs assessed at the same time. In 2017, the plaintiffs obtained judgment in the District Court on a costs certificate for $538,311.43. The plaintiffs sought to enforce the judgment against the defendant in person. The cross-claimant commenced application for costs assessment in 2018. Both defendants then sought orders staying enforcement pursuant to section 135 Civil Procedure Act 2005 and/or “the inherent jurisdiction of the court”, as well as upon equitable principles of set-off.

The court was required to decide whether the District Court had jurisdiction to hear the application. The court also had to consider whether proceedings should be transferred by the court of its own motion to the Supreme Court pursuant to sections 135 and 140 Civil Procedure Act. The court had to determine whether the defendants’ request to stay enforcement until further order, so that they can commence proceedings in the Supreme Court, should be granted. The court found that the cross-claimant had exhibited significant and inadequately explained delay in seeking assessment of costs which was likely to continue. The court concluded that the proceedings should be transferred to the Supreme Court Equity Division for the hearing of the defendants’ Notice of Motion.

The court ordered that the proceedings be transferred to the Supreme Court Equity Division for the hearing of the defendants’ Notice of Motion filed on 15 February 2018. The registry of the District Court was to obtain a date for the hearing of the application in the Supreme Court on an urgent basis within seven (7) days if possible. The stay order made by Ashford DCJ on 6 March 2018 was to continue until further order. Written submissions concerning costs of the notice of motion (including the costs of proceedings before other judges of this court) were to be exchanged by 5 pm Monday 19 March 2018. Replies to submissions on costs were to be exchanged by Wednesday 21 March 2018. The matter was relisted for argument on Friday 23 March 2018 before Gibson DCJ in the Newcastle District Court sittings.