Wentworth v Rogers

[2004] NSWSC 1192

CITATION:	Wentworth v Rogers [2004] NSWSC 1192
HEARING DATE(S):	24/8/04, 3/12/04
JUDGMENT DATE:	10 December 2004
JUDGMENT OF:	Bell J
DECISION:	1. Dismiss motions filed on 1 October 2003 in proceedings 19228 of 1982 and C of A proceedings 8 of 1986; 2. Dismiss the applicant's motions filed on 8 December 2003 in proceedings 19228 of 1982 and C of A proceedings 8 of 1986; 3. The applicant is to pay the trustees' costs of the motions filed in each of proceedings 19228 of 1982 and C of A proceedings 8 of 1986 on 1 October 2003 and 8 December 2003 on an indemnity basis.
LEGISLATION CITED:	Judgment Creditors' Remedies Act 1901 Supreme Court Rules 1970
CASES CITED:	Blackburn v The State of New South Wales (unreported) 9 August 1991 Cameron v Cole [1943] 68 CLR 571 Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 In the Will of Sheppard [1972] 2 NSWLR 714 Modern Woodcraft Pty Ltd v Nott (unreported) Young J, 7 March 1997 BC 9700735 Westpac Banking Corp v Abemond Pty Ltd (unreported) Santow J, 28 October 1994, BC 9403529 Wentworth v Rogers [2004] NSWCA 401
PARTIES :	Katherine Wentworth (Plaintiff) Gordon John Rogers (Defendant)
FILE NUMBER(S):	SC 19228/82
COUNSEL:	In Person (Plaintiff) P Dowdy
SOLICITORS:	In Person Bray, Jackson & Co

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

10 December 2004

19228/82 Katherine Wentworth v Gordon Rogers

JUDGMENT – review of indemnity costs order made by Registrar Whitehead

1 BELL J: The applicant moved on motions filed on 1 October 2003 and 8 December 2003. There was no appearance on behalf of the defendant.

2 In the motion of 1 October 2003 the applicant claimed orders, including an order the setting aside of orders made by Registrar Whitehead (the Registrar) on 17 September 2003. She sought an order that she had claimed by her motion filed on 24 February 2003, which was in these terms:

“That the stocks, shares and deposit of monies of the estate of the late LHC Rogers, standing in the judgment debtor Gordon Rogers’ name or in the name of Michael Bray and David Jackson in trust for Gordon Rogers including monies held at St George Bank at St George House, 4-6 Montgomery Street, Kogarah, 2217, bank account number 3822 in the name of the Estate of the Late LHC Rogers, and including shares being 1400 fully paid ordinary shares in National Australia Bank, 1300 stock units held in Australia Gaslight Company, and 200 fully paid shares in Australia Net.com Ltd stand charged with the payment of the amount of the judgment of the Supreme Court of NSW made on 5/5/95 entered on 23/6/1997 for costs and interest thereon which judgment took effect by issue of certificate of costs in an amount of $123,051.85 by issue of the certificate of assessment on 9/11/98 and upon which interest is accrued and accruing.”

3 By her motion filed on 8 December 2003 the applicant claimed orders, including that the order made by the Registrar on 24 November 2003, that she pay the costs of the trustees of the estate of the late LHC Rogers (the trustees) on an indemnity basis, be set aside.

4 The orders made by the Registrar in his reasons for judgment published on 17 September 2003 were made in Court of Appeal proceedings 8 of 1986 and in the present proceedings. By order made on 8 October 2004 the Court of Appeal remitted the hearing of the applicant’s motions for review of the orders made by Registrar Whitehead on 17 September and 24 November 2003 in proceedings No 8 of 1986 to me.

5 The hearing of the applicant’s motion commenced on 24 August 2004. At the conclusion of the hearing on that day the proceedings were stood over for further hearing to 19 November 2004. Subsequently, by arrangement with the parties, that date was vacated and the resumed hearing commenced on 3 December 2004. In the interim the Court of Appeal refused the applicant leave to appeal against the dismissal of her application for review of a decision of Registrar Whitehead setting aside two garnishment notices seeking to attach monies in the account of the estate of the late LHC Rogers: Wentworth v Rogers [2004] NSWCA 401.

6 On the resumption of the hearing of the motions the applicant informed that Court that in light of the Court of Appeal’s determination she considered that it was no longer appropriate that she press for the relief claimed in the motions filed on 1 October 2003. I propose to dismiss the motions filed on that date in these proceedings and in Court of Appeal proceedings No. 8 of 1986.

7 The resumed hearing was concerned only with the motions filed on 8 December 2003 that challenged the Registrar’s determination that the applicant pay the trustees’ costs on an indemnity basis.

8 It is necessary to set out the history of the proceedings.

9 On 24 February 2003 the applicant filed a notice of motion claiming an order substantially in the terms that I have set out at [2] above (the charging order motion).

10 On 3 March 2003 the Registrar delivered judgment setting aside the garnishment notice (the garnishment motion). In his judgment the Registrar considered the terms of the trust created in the will of the late LHC Rogers. He concluded that it was a discretionary trust and he rejected both the contention that Gordon Rogers controlled it and/or that he had determined it (see [12] and [13]).

11 By letter dated 10 March 2003 the solicitor acting for the trustees wrote to the applicant in these terms:

“We refer to your most recent notice of motion filed on 11 March, 2003 seeking a charging order. We assume that, as referred to recently in the hearing on another notice of motion before Mr Registrar Whitehead, that this purported charging order is based on section 27 of the Judgment Creditor’s Remedies Act .
Your application is totally misconceived. It cannot succeed and ought never to have been brought and if you continue with it, we will seek an order on an indemnity costs basis.”

12 The charging order motions were returnable on 24 March 2003. They were set down for hearing on 7 April 2003. The hearing of the motions occupied part of 7 April 2003 and were continued on 14 April 2003. On that date judgment was reserved.

13 In his judgment delivered on 17 September 2003 the Registrar said this:

“[4] The plaintiff seeks a charging order in relation to three alleged interests of the defendant. The first is funds held by Messrs Bray and Jackson as trustees for the estate. The liability of the trustees to pay monies to the defendant has been dealt with by me in a judgment in relation to a garnishee order. That judgment was delivered on 3 March 2003 and was the subject of a review by Miles AJ in a judgment delivered on 16 June 2003 (reported at [2003] NSWSC 472). Miles AJ dismissed an application to review the earlier judgment delivered on this issue. I have read his Honour’s reasons. I can see no distinction between the findings in relation to estate in that matter and this one. I decline to make a charging order in relation to the relief sought against the estate. There was some argument as to the locus of Mr Dowdy to appear for the trustees in this matter. It would appear to me for the reasons outlined by Miles AJ that I am entitled to permit the trustees to appear on an application such as this and for that reason I permit them to appear on this motion.”

14 On 24 November 2003 the Registrar delivered judgment with respect to the costs of the charging order motions. It was the trustees application that an order be made that the applicant pay their costs on an indemnity basis. In suport of that application they read the affidavit of Stuart McDougall, which annexed the letter of 10 March 2003 that I have set out at [11] above.

15 The Registrar considered the garnishment motion raised an identical legal and factual issue to the charging order motion. Since that issue had been determined adversely to the applicant by his judgment of 3 March 2003, the Registrar considered that the proper course for the applicant to have adopted was to await the determination of the review his judgment before proceeding with the hearing of charging order motion. He rejected the applicant’s submission that the trustees had no right to appear on the hearing of the application under s 27(1) of the Judgment Creditors’ Remedies Act. The Registrar considered that (subject to his judgment of 3 March 2003 being reversed) the applicant should have been aware that her claim for a charging order was seemingly hopeless. He referred to the judgment of Hunt J in Blackburn v The State of New South Wales (unreported), 9 August 1991, in this respect.

16 This is a review of the determination made by the Registrar under Pt 61 r 3 of the Supreme Court Rules 1970. The power to review is not an appeal and it is open to review all aspects of the findings of the Registrar. The Court is not restricted to interfering only if the Registrar acted upon some mistaken principle: In the Will of Sheppard [1972] 2 NSWLR 714; Modern Woodcraft Pty Ltd v Nott (unreported) Young J, 7 March 1997. It remains desirable that the Court identify a proper basis for disturbing the decision under challenge: Westpac Banking Corp v Abemond Pty Ltd (unreported) Santow J, 28 October 1994.

17 The applicant identified the principles to be applied in determining whether to make an order for costs on an indemnity basis by reference to the judgment of Sheppard J in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 232-234. In that case his Honour referred to a large number of cases in which consideration had been given to an order for indemnity costs including the judgment of Hunt J in Blackburn v The State of New South Wales. He distilled a number of principles from this review. These included (at 233):

“In consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v Barnes at 141 said that Court had a general and discretionary power to award costs as between solicitor and client ‘as and when the justice of the case might so require’. Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston at 637; namely, there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice.”

18 Among the circumstances which have been thought to warrant the exercise of the discretion to make an order for costs on an indemnity basis that

Shepperd J identified was the fact that proceedings were commenced or continued in wilful disregard of known facts or clearly established law (at 233).

19 The applicant submitted that it had been wrong for the Registrar to conclude that her application for a charging order under the Judgment Creditor’s Remedies Act raised the same legal issue as that determined by him in his judgment discharging the garnishment order. The latter involved a finding that the funds held by the trustees in the account at the St George Bank did not constitute a debt due and accruing to Gordon Rogers. The applicant submitted that she had considered it reasonably open to contend before the Registrar that a charge under the Judgment Creditors’ Remedies Act was a form of floating charge that would crystallise on the exercise of the trustees discretion to distribute some or all of the fund to Gordon Rogers. Allied to this as I understood her submission had been the contention that Gordon Rogers as a beneficiary under the terms of the discrtionary trust had an equitable interest for the purposes of s 27(1) of the Judgment Creditors Remedies Act notwithstanding that the trustees had made no determination to make a distribution in his favour. The applicant’s concession in the proceedings before me that such a contention was not supportable was one only made in light of the judgment of the Court of Appeal. She submitted that in all the circumstances it had been reasonable for her to pursue the relief claimed in the charging order motion at the time.

20 An examination of the transcript of proceedings before the Registrar on 14 April shows that the applicant submitted, inter alia, that the trust created under the will of the late LHC Rogers was a bare trust that had been determined by the actions of Gordon Rogers (T 28) or, alternatively, that Gordon Rogers was possessed of the right to have the trust determined (T 29). This was the very issue that had been determined against the applicant by the Registrar’s judgment of 3 March 2003.

21 In his judgment of 3 March 2003 the Registrar set out the terms of paragraph 4(b) of the will. This was the paragraph that Santow JA noted had been accidentally omitted from Miles AJ’s judgment. It provided:

“(b) To pay all or part of the income and all or part of the capital of the Fund to my son Gordon John Rogers at such times my executors in their discretion think fit without any obligation to make any payments at all .” (emphasis added)

Santow JA observed of the concluding words of this subclause and subclause 4(d) at [7]:

“They clearly gave Mr Rogers no actual interest in the capital or income of the residuary estate, dependent as this was on a favourable exercise of the trustees’ discretion in favour of Mr Rogers as has not occurred.”

22 I consider that the Registrar was correct to approach the trustees’ application for an order for indemnity costs upon the basis that the charging order motions raised the same issue for determination. That issue had been determined adversely to the applicant and in my opinion it was unreasonable for her to persist with the hearing of the charging order motions. I am mindful tha the applicant is a litigant in person. However, as the Registrar observed, she is not without experience in the conduct of litigation.

23 The applicant contended that it was an error for the Registrar to have made any order for costs in favour of the trustees. It was her submission that the scheme of Pt 5 of the Judgment Creditors’ Remedies Act, which deals with charging orders, contemplates that a judgment creditor may obtain an order charging stocks, shares or funds on deposit ex parte. After such an order is made absolute the judgment debtor, or a person interested, may move for the discharge or variation of the order under s 32. In her submission the trustees had been without standing to be heard on the application for the making of an order.

24 The trustees were the legal owners of the stock, shares and funds on deposit that were the subject of the application. They were “persons interested” for the purposes of s 32 of the Act. While provision is made for an order to be made ex parte I see no reason to conclude that a person with a sufficient interest to move for the discharge or variation of such an order, and who has notice of the application, may not be heard on whether the order should be made. I accept the trustees’ submission that, as the legal owners of the stock, shares and funds on deposit, it was appropriate for the Registrar to hear from them before making an order: Cameron v Cole (1943) 68 CLR 571 at 589 per Rich J.

25 I am not persuaded that it is appropriate to discharge the Registrar’s costs order.

26 For these reasons I propose to dismiss the applicant’s motions.

27 The trustees sought an order that their costs of the motions be paid on an indemnity basis. I consider that in light of the history of the proceedings, including the trustees’ solictors’ letter of 10 March 2003, there was no sound basis for resisting the costs order. The Registrar did not err in the approach that he took. The review of his determination was seemingly hopeless and time was taken up with submissions such as that which I have summarised at [19] above which were without merit. I consider that it is appropriate to order that the applicant pay the trustees’ costs on an indemnity basis.

Orders

1. Dismiss the motions filed on 1 October 2003 in proceedings No 19228 of 1982 and C of A proceedings No 8 of 1986;

2. Dismiss the motions filed on 8 December 2003 in proceedings No 19228 of 1982 and C of A proceedings 8 of 1986;

3. The applicant is to pay the trustees’ costs of the motions filed in each of proceedings No 19228 of 1982 and C of A proceedings No 8 of 1986 on 1 October 2003 and 8 December 2003 on an indemnity basis.

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Last Modified: 12/15/2004