Wentworth v Rogers - [2003] NSWSC 474

CITATION: Wentworth v Rogers [2003] NSWSC 474

HEARING DATE(S): 6.5.03, 9.5.03

JUDGMENT DATE:
16 June 2003

JURISDICTION:
Court of Appeal
Common Law Division

JUDGMENT OF: Miles AJ

DECISION: Application for removal of stay dismissed, save that the stay be enforceable until further order of the Court. Libery to both parties to apply following the decision of the Court as to the disposal of monies paid into Court in proceedings 11094 of 1995

CATCHWORDS: Execution - writ for levy on property to enforce judgments for costs - certificates of costs in favour of judgment creditor for amount greater than amount in certificates in favour of judgment debtor - whether execution should be stayed - nature of judgment debtors interest in property subject of levy - doubt as to whether any saleable value - alternative source of funds to satisfy judgment creditor's claim paid into court in related proceedings - legal practitioners - party in person with address for service at office of solicitor - whether solicitor entitled to appear at hearing - legal practitioner holding practising certificate as barrister and solicitor - whether entitled to appear as barrister.

LEGISLATION CITED: Supreme Court Rules
Legal Profession Act 1987

PARTIES :
Katherine Wentworth - Applicant
Gordon John Rogers - Respondent

FILE NUMBER(S): SC 19228/82; 008/86

COUNSEL: Applicant in person
Mr Phillip Beazley - Respondent

SOLICITORS:

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 19228/82; 008/86

LOWER COURT
JUDICIAL OFFICER : Shaw J

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
COURT OF APPEAL

MILES AJ

16 June 2003

19228/82
008/1986

Katherine WENTWORTH v Gordon John ROGERS

JUDGMENT

1 HIS HONOUR: These are applications to set aside an order staying the execution of two writs for the levy of property to enforce judgments in two proceedings respectively, one in the Common Law Division of the Court (No 19228 of 1982) and the other in the Court of Appeal (No 8 of 1986). The order staying execution was made by Shaw J on 7 April 2003. Although taken out in terms of a single order, the stay applies to both writs. The stay is for an indefinite period.

2 Each of the writs is in prescribed form (Form No. 57 in Schedule F to the Rules). It commands the Sheriff to levy on the property of the respondent “which is authorised by law to be taken in execution” and specifies that property to be:

“(a) Money held in the Supreme Court of New South Wales on deposit by the Registrar on behalf of G R and T R Rogers.

(b) The properties(sic) at RMB 284A Temata Upper Moore Creek Road NSW

(c) The trust account of Jackson Bryant and Co of Level 1, 53 Cross Street, Double Bay, NSW 2028, being funds for the benefit of G J Rogers from the Estate of the Late Laura Helen Cynthia Rogers.”

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 Wentworth v Rogers

Details

AGLC: Wentworth v Rogers [2003] NSWSC 474
Case: [2003] NSWSC 474
Decision Date: 16 June 2003

CaseChat Overview and Summary

Wentworth, the judgment creditor, sought to enforce a judgment for costs against Rogers, the judgment debtor, by executing a writ for levy on a property. The dispute arose from differing certificates of costs, with the one in favour of Wentworth claiming a greater amount than that in favour of Rogers. The High Court was tasked with deciding whether the execution should proceed, considering the nature of Rogers' interest in the property and whether there was any doubt about its saleable value. Additionally, the court had to determine if an alternative source of funds to satisfy Wentworth's claim, paid into court in related proceedings, impacted the execution. Furthermore, the court had to consider the procedural aspect of whether a legal practitioner, holding a practising certificate as both a barrister and solicitor, was entitled to appear as a barrister at the hearing.

The court ruled that the execution should be stayed because there was significant uncertainty about the property's saleable value. It was also noted that an alternative source of funds was available, which could potentially satisfy Wentworth's claim. Regarding the procedural issue, the court held that a legal practitioner holding a practising certificate as both a barrister and a solicitor was not entitled to appear as a barrister unless specifically authorised by the court. The court further clarified that a party appearing in person, with an address for service at the office of a solicitor, did not entitle the solicitor to appear at the hearing.

Orders