Riva NSW Pty Ltd v Key Nominees Pty Ltd [2023] NSWSC 711

Supreme Court New South Wales

Medium Neutral Citation: Riva NSW Pty Ltd v Key Nominees Pty Ltd [2023] NSWSC 711 Hearing dates: 9 June 2023, supplementary submissions received on 13 June 2023 (Defendant) and 19 June 2023 (Plaintiffs) Date of orders: 7 July 2023 Decision date: 07 July 2023 Jurisdiction: Equity Before: Meek J Decision: Application for adjournment and setting aside Registrar's orders refused – Appointment of a receiver on specific terms Catchwords: 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 Legislation Cited: Civil Procedure Act 2005 (NSW) Civil Procedure Regulation 2017 (NSW) Corporations Act 2001 (Cth) Interpretation Act 1987 (NSW) Legal Profession Act 2004 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Legal Profession Uniform Law Application Regulation 2015 (NSW) Legal Profession Uniform Law (NSW) Real Property Act 1900 (NSW) Supreme Court Act 1970 (NSW) Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Vexatious Proceedings Act 2008 (NSW) Cases Cited: Agusta Pty Ltd & Ors atf the Cavallino Unit Trust v The Official Trustee in Bankruptcy ato the bankrupt estates of Gustavo Ferella and Angelo Ferella [2008] NSWSC 685; (2008) 6 ABC (NS) 164 Agusta Pty Ltd v Official Trustee in Bankruptcy as Trustee of Estates of Ferella [2009] NSWCA 129 Australian Beverage Distributors v Evans & Tate Premium Wines Pty Ltd [2006] NSWSC 560; (2006) 230 ALR 184 Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21 Australian Securities and Investments Commission v Sigalla (No 4) (2011) 80 NSWLR 113; [2011] NSWSC 62 Ballard v Carlisle Attorneys Pty Ltd [2010] NSWSC 769 Bank of New South Wales v Preston (1894) 20 VLR 1 Benjamin & Khoury Pty Ltd v Rahme [2022] NSWSC 766 Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 Black v Garnock (2007) 230 CLR 438; [2007] HCA 31 Bond v McClay [1903] St R 1 Botany Municipal Council v Secretary, Department of Arts, Sport, Environment, Tourism and Territories (1992) 34 FCR 412 Boyd v Thorn (2017) 96 NSWLR 390; [2017] NSWCA 210 Calandra v Murden [2015] NSWCA 231 Carey v Australian Broadcasting Corp (2012) 84 NSWLR 9; [2012] NSWCA 176 Chen v Lym International; Chen v Marcolongo (No 2) [2009] NSWCA 158 Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; [1974] HCA 17 Cooper v Williams [1963] 2 QB 567 Corbett v Nguyen (No 2) [2012] NSWSC 673 Corporate Affairs Commission v Smithson [1984] 3 NSWLR 547 Coshott v Barry [2015] NSWCA 257 Croker v Commissioner of Taxation (2005) 145 FCR 150; [2005] FCA 127 Dimas v GIO (NSW) (1992) 15 MVR 213 Doyle v Hall Chadwick [2007] NSWCA 159 eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (2015) 90 NSWLR 451; [2015] NSWCA 284 Emanuele v Australian Securities Commission (1997) 188 CLR 114; [1997] HCA 20 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502 Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12 Fernance v Nominal Defendant (1989) 17 NSWLR 710 Fordyce v Leung [2021] NSWCA 262 Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172 GR v Secretary, Department of Communities and Justice [2020] NSWSC 892 Grace v Grace (No 9) [2014] NSWSC 1239 Green v Schneller [2003] NSWSC 202 Hall v Foster [2012] NSWSC 974 Hancock v Rinehart (Lump Sum Costs) [2015] NSWSC 1640 In re A Debtor (No 21 of 1950) (No 2); Ex parte The Petitioning Creditors v The Debtor [1951] Ch 612 In the matter of Riva NSW Proprietary Limited [2016] NSWSC 1954 Ingles v Gould [1993] 2 Qd R 250; [1992] QCA 068 IWC Industries Pty Ltd v Sergienko [2021] NSWCA 292; (2021) 20 BPR 41,785 Jim's Group Pty Ltd v Quindar Pty Ltd [2014] NSWSC 647 Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303 Joseph v Pelerman Group Pty Ltd (as Trustee for Reuben Pelerman Trust) (Supreme Court (Qld), de Jersey J, 22 April 1998, unrep) Kayserian Nominees (No 1) Pty Ltd v JR Garner Pty Ltd [2008] NSWSC 1011 Kraft v Kupferwasser (1991) 23 NSWLR 236 Lahoud v Lahoud [2011] NSWSC 994 Lahoud v Lahoud [2012] NSWSC 284 Lambert v Mainland Market Deliveries Ltd [1977] 1 WLR 825 Lees v O'Dea (No 2) [2014] FCA 1082; (2014) 320 ALR 792 Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 Lysaght Bros & Co Ltd v Falk (1905) 2 CLR 443; [1905] HCA 7 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd (No. 4) [2016] NSWSC 722 Martin v Attorney-General (NSW) [2014] NSWCA 189 May v Christodoulou (2011) 80 NSWLR 462; [2011] NSWCA 75 Minister Administering Environmental Planning and Assessment Act 1979 (NSW) v Carson (1994) 35 NSWLR 342 Mohareb v Palmer [2017] NSWSC 1491 Morgan v The State of Victoria [2008] 22 VR 237; [2008] VSCA 267 National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 1 ACSR 405 National Mutual Fire Insurance Co Ltd v Commonwealth [1981] 1 NSWLR 400 Nest Opportunities Pty Ltd v Eastern Property Alliance Pty Ltd [2020] NSWSC 1835 Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9 Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7 Puddephatt v Leith (No 2) [1916] 2 Ch 168 Qu v Kuang [2008] NSWSC 991 Reid v Cupper [1915] 2 KB 147 Riva NSW Pty Limited v Key Nominees Pty Limited [2013] NSWSC 1952 Riva NSW Pty Limited v Mark A Fraser; Fraser v Riva (NSW) (No 2) [2020] NSWSC 1162 Riva NSW Pty Limited v The Official Trustee in Bankruptcy; The Official Trustee in Bankruptcy v Ferella [2022] NSWSC 153 Riva NSW Pty Ltd ACN 113 881 815 v Key Nominees Pty Ltd & Chris Stomo [2014] NSWSC 389 Riva NSW Pty Ltd ACN 113 881 815 v Key Nominees Pty Ltd [2014] NSWSC 301 Riva NSW Pty Ltd v Fraser; Fraser v Riva (NSW) (No 3) [2020] NSWSC 1472 Riva NSW Pty Ltd v Key Nominees Pty Ltd [2014] NSWCA 381 Riva NSW Pty Ltd v Key Nominees Pty Ltd [2016] NSWSC 1569 Riva NSW Pty Ltd v Key Nominees Pty Ltd (No 2) (Supreme Court (NSW), Stevenson J, 30 November 2016, unrep) Riva NSW Pty Ltd v MA Fraser; Fraser v Riva (NSW) (No 4) [2022] NSWSC 1624 Riva NSW Pty Ltd v Mark A Fraser & Christopher P Clancy t/as Fraser Clancy Lawyers [2020] NSWCA 210 Riva NSW Pty Ltd v Mark A Fraser; Fraser v Riva (NSW) [2019] NSWSC 1310 Ryan v South Sydney Junior Rugby League Club Ltd [1975] 2 NSWLR 660 Spautz v Kirby (1989) 21 NSWLR 27 State of New South Wales v Hamod [2011] NSWCA 376 Thomas v Bunn [1991] 1 AC 362 TJ and RF Fordham Pty Ltd v Starhill Property Group Pty Ltd [2017] NSWSC 240 Tomko v Palasty (No 2) (2008) 71 NSWLR 61; [2007] NSWCA 369 TPFL Ltd (in liq) v SB Group Property Valuers and Consultants Pty Ltd (in liq) [2012] NSWSC 853 Turagadamudamu v PMP Ltd (2009) 75 NSWLR 397; [2009] NSWCA 120 Van Reesema v Australian Growth Resources Corporation Pty Ltd (1987) 75 ALR 311 Voicu v The Owners – Strata Plan No 1624 [2020] NSWCA 52 Watkins Ltd v Ranger Uranium Mines Pty Ltd (1985) 35 NTR 27 Weber v Aquaqueen International Pty Ltd; Aquaqueen International Pty Ltd v Weber [2013] NSWSC 1181 Wende v Horwath (No 2) (2015) 91 NSWLR 588; [2015] NSWCA 416 Wende v Horwath (NSW) Pty Limited (2014) 86 NSWLR 674; [2014] NSWCA 170 Wentworth v Wentworth [1996] NSWCA 553 Wentworth v Wentworth (1999) 46 NSWLR 300; [1999] NSWSC 317 Wentworth v Wentworth (2000) 52 NSWLR 602; [2000] NSWCA 350 Wentworth v Wentworth (Supreme Court (NSW), Young J, 12 December 1994, unrep) Wild v Meduri; Meduri v Neal; Meduri v Meduri [2023] NSWSC 113 Wilmot v Buckley (1984) 2 FCR 540 Wyszynski v Bill [2005] NSWSC 110 Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 Zepinic v Chateau Constructions (Australia) Ltd (No 2) [2013] NSWCA 227 Texts Cited: Casson, DB and IH Dennis, Odgers' Principles of Pleading and Practice in Civil Actions in the High Court of Justice (22nd ed, 1981, Stevens & Sons) Court Forms Precedents & Pleadings NSW (LexisNexis) Dal Pont, GE, The Law of Costs (5th ed, 2021, LexisNexis) Finnane, Edmund, Christopher Wood and Nicholas Newton Equity Practice and Precedents (2nd ed, 2019, Thomson Reuters) Lindsay, Shannon, Caveats Against Dealings in Australia and New Zealand (1995, Federation Press) Macquarie Dictionary, online ed Mason, Keith, "The Inherent Jurisdiction of the Court" (1983) 57 Australian Law Journal 449 O'Donovan, James, Company Receivers and Managers (2nd ed, 1992, Law Book Co) Ritchie's Uniform Civil Procedure NSW (LexisNexis Butterworths) The Cambridge Business English Dictionary, Cambridge University Press Zuckerman, Adrian et al, Zuckerman on Australian Civil Procedure (2018, LexisNexis) Category: Principal judgment Parties: Riva NSW Pty Ltd (First Plaintiff / First Respondent on Notice of Motion filed 14 February 2023 / First Applicant on Notice of Motion filed 26 April 2023 Gustavo Ferella (Second Plaintiff / Second Respondent on Notice of Motion filed 14 February 2023) Angelo Ferella (Third Plaintiff / Third Respondent on Notice of Motion filed 14 February 2023 / Second Applicant on Notice of Motion filed 26 April 2023) Key Nominees Pty Ltd (Defendant / Applicant on Notice of Motion filed 14 February 2023 / Respondent on Notice of Motion filed 26 April 2023) Representation: Counsel: