JUDGMENTS — Execution of orders for costs — The first plaintiff claims to be a trustee of a unit trust holding property at Point Piper previously registered in the name of the second and third plaintiffs. The defendant, the mortgagee of the property, sold it in 2006 following mortgage default. The plaintiffs commenced proceedings in 2009 claiming relief against the defendant in respect of the mortgagee sale surplus funds. The 2009 proceedings were dismissed. Subsequently, the plaintiffs commenced further proceedings in 2012, 2015, 2016 and 2018 all raising issues arising from the defendant’s handling of the surplus funds. In 2014, orders were made precluding the plaintiffs from commencing relief in respect of the initial cause of action. In 2017, orders were made staying the proceedings conditional upon the plaintiffs paying what were then 10 separate costs orders in favour of the defendant subject to three specified set-off items. The defendant in 2015-2016 served a statutory demand notice against the first plaintiff and bankruptcy notices against the second and third plaintiffs which notices were set aside. The defendant took steps to have costs under what were then 13 costs orders assessed and had certificates registered in the Local Court in November 2019 creating 13 separate Local Court judgments. The defendant apart from an earlier attempt to seek an examination order at no stage attempted to issue execution by means of a writ for the levy of property or a garnishee order or a charging order in respect of the 13 costs orders and judgments. In 2020, the third plaintiff died and as yet no grant of representation has issued in his estate. In early 2023, the defendant sought by notice of motion the appointment of a receiver and the issue of a writ of sequestration. The plaintiffs’ then solicitor ceased to act for the plaintiffs subsequent to the filing of the motion. The Registrar in Equity listed the motion for hearing. The plaintiffs appeared by counsel, seeking an adjournment, the setting aside of the Registrar’s orders and opposing the appointment of a receiver and issue of a writ — The defendant by failing to use an available statutory and administrative means to register a single judgment instead of 13 separate judgments created a cumbersome platform for enforcement of costs — Nonetheless, the Court’s incidental power to regulate its own processes when informed by the overriding purposes of the Court’s approach to proceedings dictates that in the particular prevailing circumstances the appointment of a receiver on specific terms is appropriate.
CIVIL PROCEDURE — Restraining proceedings — The Court has no inherent power to restrain or preclude a litigant from commencing fresh or new proceedings without leave of the Court but does have inherent power to restrain a litigant from making frequent vexatious applications in pending proceedings — The Court has statutory power on the dismissal of proceedings to place terms preventing a litigant from bringing fresh proceedings or claiming the same relief in fresh proceedings.
JUDGMENTS — Enforcement — Ordinary means of enforcement of judgments — Distinction between judgment for payment of monies and judgments requiring a party to do an act or abstain from doing an act.
RECEIVERS — Appointment of receiver to facilitate execution of costs — Directions and powers to be given to the receiver are purpose-based to facilitate the simplification of the process of execution.
COSTS — Discussion of the character of costs orders — Distinction between declaration of liability for costs and quantification of costs — Costs orders are orders for payment of money — Discussion regarding when a costs order is enforceable — Fragmentation of proceedings across two or more courts is generally undesirable — However, the statutory regime for assessment of costs envisages and mandates that a costs order creating a liability in one court may be quantified by an assessment process and a certificate registered as a judgment in another court.
COSTS — Costs certificates — Distinctive characteristics — The entry of judgment on a registered costs certificate is a ministerial act. It is not a judgment of a court as such. It takes its force from the statutory provisions. Statutory provisions make the certificate enforceable as a judgment but otherwise do not alter its legal effect as an adjudication of a costs assessor — A Supreme Court costs order does not ‘merge’ in a ‘judgment’ of another court upon registration in that other court of a certificate of assessment of such costs order.
COSTS — Multiple costs orders — The regime for assessment and registration of certificate of costs depends upon the legal profession legislation in force at the time of the proceedings to which the costs assessment relates were commenced — The regimes since 2004 allow for registration of a single judgment instead of multiple separate judgments for each costs order.
WRITS — Writ for sequestration — Consideration of requirements for issue of writ of sequestration — Requirements differ as between orders for payment of money and orders that a party do or abstain from doing a particular act.
PRACTICE — Failure of party to formulate a claim despite various opportunities — Court imposes leave requirement for commencement of any further proceedings — Repeated applications to ventilate issues covered by leave requirement — Whether commencement of proceedings without prior leave of the Court gives rise to a nullity or merely makes proceedings susceptible to being stayed or dismissed.
PRACTICE — Notice of ceasing to act —Requirement to serve notice on parties to the proceedings in addition to service of notice on the client.
PRACTICE — Appearance — Procedure — Representation of company by director.
PARTIES — Representation of interests of a deceased’s estate.
COURTS — Tipstaff — Functions.
CAVEATS — Caveatable interests — A judgment debt is not ordinarily a secured interest and does not create a caveatable interest — A writ, whether or not it is recorded in the Register, does not create any interest in land.
Richard Parsons appeared for the defendant.
Reasons for the decision can be found here.