Fares (bht Fares) v Saad & Ors [2020] NSWDC 309

District Court New South Wales

Medium Neutral Citation: Fares (bht Fares) v Saad & Ors [2020] NSWDC 309 Hearing dates: 17 June 2020 Date of orders: 18 June 2020 Decision date: 18 June 2020 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 23-26 Catchwords: COSTS – attempted enforcement of consent judgment – execution of writ for levy of judgment debtor's property – application for costs of execution – application for costs for previous ineffective attempts to enforce judgment Legislation Cited: Civil Procedure Act 2005 (NSW), ss 98, 137 Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 39.25, 39.28 Category: Procedural and other rulings Parties: Ms J Fares by her tutor Mr R Fares (Plaintiff) Ms C Saad (First Defendant) Mr F Saad (Second Defendant) Ms D Saad (Third Defendant) Representation: Solicitors: Lamrocks Solicitors for the Plaintiff SLF Lawyers for the First, Second and Third Defendants File Number(s): 2013/89874 Publication restriction: Nil

Judgment

INTRODUCTION 1. This application arises from difficulties that the plaintiff, or judgment creditor, who is the applicant on the motion, has experienced in enforcing a consent judgment against the defendants, or judgment debtors, being the respondents on the motion, entered by Wass SC DCJ on 6 February 2017. By that judgment, the respondents were ordered to pay the judgment sum of $40,000 (inclusive of costs and disbursements) to the applicant, and for payment to be made by instalments. No instalments were, however, paid, so the applicant sought to enforce the judgment by various alternative means. These were ineffective before the applicant sought the issue of a writ for levy of property owned by the respondents at Punchbowl. 2. The respondents do not dispute that the applicant's prior attempts at enforcement were made, as set out in the affidavit (paragraphs 3 & 4) of Mr Groves, the plaintiff's solicitor, sworn 4 May 2020. 3. This last method of issuing the writ against property has been more effective. On 25 September 2018, the writ for levy of property was issued by the District Court in Parramatta. By this writ, the respondents made payment to the Sheriff of $70,000 pursuant to r 39.25 of the Uniform Civil Procedure Rules 2005 (NSW) (the 'UCPR'). By its Amended Notice of Motion, (which was further amended by myself yesterday, to add two additional orders) the applicant now seeks her costs incurred in this particular form of judgment execution, as well as her costs in all previous, unsuccessful, attempts to execute the judgment, in accordance with the prescribed scale. These are all itemised in order 4 of the Notice of Motion, supplemented by two additional orders that I will return to later in these reasons. The applicant does so having been unsuccessful in trying to negotiate agreement with the respondents of its costs. Had such agreement been reached, it could have been presented to the Court (r 39.28(1)(a) of the UCPR). In the absence of such agreement, the applicant falls back on bringing application to this Court under r 39.28(1)(b) of the UCPR. That rule concerns the costs of execution for this form of enforcement, being the writ of execution against the judgment debtors' property. The applicant also invokes, further or alternatively, ss 98 and 137 of the Civil Procedure Act 2005 (NSW) in relation to other costs incurred in trying to enforce the consent judgment, by the earlier, unsuccessful modes of enforcement. 4. The respondents oppose the application.