District Court New South Wales Medium Neutral Citation: Homebuilding Pty Ltd v Cappello (No. 3) [2024] NSWDC 407 Hearing dates: 6 September 2024 Date of orders: 10 September 2024 Decision date: 10 September 2024 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph [90] Catchwords: CIVIL PROCEDURE – judgment creditor's enforcement of costs orders – application to authorise Sheriff to enter premises of judgment creditor to take possession of goods – Sheriff interpleader CIVIL PROCEDURE – whether compliance with rules for filing and serving notices of motion – filing requirement – whether requirement to 'seal' motion –requirement for personal service – whether direction for informal service should be made ADMINISTRATIVE LAW – functions of Sheriff under Sheriff Act 2005 (NSW) – whether by applying for interpleader, the Senior Sergeant in whose name the application was brought had exceeded authority Legislation Cited: Civil Procedure Act 2005 (NSW), ss 17(3), 63(3) Sheriff Act 2005 (NSW), ss 3-6 Sheriff Regulation 2021 (NSW), reg 4 Uniform Civil Procedure Rules 2005 (NSW), rr 4.12, 6.2, 10.14, 43.3, 43.5-8 Cases Cited: Cappello v Homebuilding Pty Ltd [2024] NSWCA 88 Kennett v Charlton [2007] NSWSC 190 McPherson, Thom & Co v Sandhurst and Northern District Trustees, Executors and Agency Co Ltd (1929) The Argus Law Reports 240 Roberts v Investwell Pty Ltd (in liq) [2021] NSWCA 134 Smith v Nixon (1885) 7 ALT 74 Texts Cited: Nil Category: Procedural rulings Parties: Homebuilding Pty Ltd (Judgment Creditor) Mr Rosario Cappello (Judgment Debtor) Ms Maria Cappello (Judgment Debtor) Litigation Fund WCX Pty Ltd (Claimant) NSW Sheriff's Office Representation: Counsel: Mr D O'Connor (Judgment Creditor) Mr C Marshall (NSW Sheriff's Office) Solicitors: Adams & Partners Lawyers (Judgment Creditor) Self-represented (Judgment Debtors and Claimant) NSW Crown Solicitor's Office (NSW Sheriff's Office) File Number(s): 2022/00093495 Publication restriction: Nil JUDGMENT Background 1. Before the Court are two related motions. 2. The first is a claim by a judgment creditor for the Court to authorise the Sheriff's officers to enter premises and re-enter premises owned by a judgment debtor at 39 Empire Street, Haberfield to take possession of goods located therein. 3. The second is a claim by a third party to the proceeding, Litigation Fund WCX Pty Ltd (the 'Claimant') to property legally owned by the judgment debtors ('the Cappellos'), over which the judgment creditor seeks to enforce a judgment in its favour. The Claimant's claim engages the provisions relating to Sheriff's interpleader in Division 3 of Part 43 of the Uniform Civil Procedure Rules 2005 ('UCPR'). Costs orders in favour of the judgment creditor 1. The background to the applications indicates an extraordinarily protracted piece of litigation, which background was recently adverted to by Kirk JA in Cappello v Homebuilding Pty Ltd [2024] NSWCA 88. I adopt his Honour's summary for present purposes. 2. The litigation involved a building dispute between the owners the Cappellos, the owners of a property, and HomeBuilding, a construction company; which gave rise to a proceeding in the Supreme Court of New South Wales commenced in 2019. HomeBuilding obtained a judgment in its favour (given by Ball J); the monetary value of which was adjusted, on appeal, to $50,097.32. Ball J ordered that the Cappellos pay HomeBuilding's costs of the proceeding at first instance on an indemnity basis and that order was not disturbed on appeal. Following the adjustment of the monetary judgment on appeal, the Court of Appeal ordered Cappellos were ordered to pay 75% of the costs of HomeBuilding (and its director) 3. HomeBuilding applied to have its costs orders at first instance and on appeal assessed. In December 2021, two certificates of determination were issued to reflect those costs orders, one was for the sum of $32,944.13 (for the costs of the appeal proceeding); the other for $155,746.44 (for the costs of the proceeding at first instance). HomeBuilding filed the certificates in the Local Court and District Court, respectively. 4. However, in January 2022, the Cappellos applied for review of the costs assessments. In March 2022, a review panel upheld the assessor's determinations. 5. On 1 April 2022, judgments were recorded (in slightly different amounts to what emerged from the certificates of costs determinations) in the Local Court and District Court. 6. The Cappellos appealed the decisions of the review panel to this Court. In December 2022, the appeal against the costs review panel's decisions was dismissed. They then appealed the District Court's decision dismissing that appeal. The appeal to the Court of Appeal also failed. 7. From about September 2022, HomeBuilding began efforts to enforce its costs orders. Materially, this included an application for a writ of levy of property to enforce the District Court's order. That application was stayed in November 2022 before the stay was lifted by me in August 2023. HomeBuilding then filed a writ for levy of property in November 2023. But in December 2023, HomeBuilding's lawyers were notified by the NSW Sheriff's Office that when attempting to execute the writ on 4 December 2023, Mrs Cappello refused the Sheriff's officers' entry to the property. On 12 February 2024, I made an order under s 135 of the Civil Procedure Act 2005 (NSW) authorising the Sheriff to enter the Cappellos' premises for the purpose of taking goods under a writ of execution. The Cappellos' appeal against that order failed in the aforementioned judgment of the Court of Appeal on 23 April 2024. HomeBuilding's application 1. Mr Malik Anne, a solicitor of HomeBuilding's lawyers, (Adams & Partners) provided a supporting affidavit to HomeBuilding's application. 2. Following the Court of Appeal's dismissal of the appeal against my decision on 12 February 2024, Mr Anne deposed to receiving information from the Sheriff's Office about an essentially reformulated version of form of orders I made on 12 February 2024. That reformulated version is reflected in the orders sought in HomeBuilding's notice of motion filed on 2 July 2024. 3. Before that motion could be determined, a significant intervening event occurred. The Sheriff's interpleader The Claimant's notice 1. On 22 July 2024, Mr Robert Coshott, a director of the company Litigation Fund WCX Pty Ltd (the Claimant), filed a notice under r 43.3 of the UCPR by which the Claimant laid claim to certain property that the Sheriff had, or alternatively intended, to take possession of. 2. This notice was filed in the Sydney Civil Registry – a different venue to where the underlying litigation had been commenced and fought, being Parramatta. Since the notice was filed in Sydney, the Registry of this Court in Parramatta (where the Sheriff is located) was, for a period, unaware of the filing of this notice. 3. The property the subject of the Claimant's notice was described as "All assets both real and personal, including the contents of 41 Empire Street, Haberfield NSW and motor vehicles registered in the names of either Rosario Cappello or Maria Cappello" (the Property). The claim was pithily described by the director of the Claimant: "I claim the property itself". 1. The basis for the claim of ownership was explained by a reference to a deed entered between the Cappellos and the Claimant that was entered into on 31 October 2023. The nature of the arrangement embodied in that deed was that the Claimant advanced a line of credit to the Cappellos in the amount of $500,000 repayable (with interest) over a 5 year period, secured by a charge to the Claimant over all of the Cappellos' assets, both real and personal, and both joint and several. Thus, in the prescribed form, the Claimant indicated that the reason why the Property was in the Cappellos' possession was due to its equitable ownership of it. 2. The Claimant's Notice was mentioned during the call over of matters at the commencement of the August 2024 Parramatta Civil List sittings which I have presided over. 3. In accordance with directions by the Court, on 16 August 2024, Senior Sergeant Roy sent an email to Malik Anne, solicitor for the execution creditor, of the Claimant's Notice; as well as indicating that the Sheriff had not seized any assets belonging to the judgment creditors; and finally, advising the execution creditor that it had a week to accept the claim or reject it. HomeBuilding's opposition to the Claim 1. On 23 August 2024, Atul Singh, of the firm Adams & Partners, acting for HomeBuilding, prepared two documents: one was a letter of objections addressed to the NSW Sheriff's Office and the other an affidavit of Mr Singh of sworn 21 August 2024. The letter and Mr Singh's affidavit constitute Annexure 'H' to Senior Sergeant Cubric's affidavit. 2. Mr Singh's letter indicated HomeBuilding's objection to the Claimant's claim. 3. Mr Singh's affidavit materially set out information about assets owned by the judgment debtors, the Cappellos, as well as setting out background history. Further, some additional information was supplied regarding the Claimant, Litigation Fund WCX Pty Ltd. I will now elaborate the nature of that information. 4. As to the Cappellos, Mr Singh indicated the results of a search of the Land Registry Services for 39 Empire Street, Haberfield (Lot 10, DP 1247934). The Cappellos resided at that place. Then, further searches were made of real estate jointly and severally owned by the Cappellos. That relevantly disclosed that, in addition to 39 Empire Street, Haberfield, they also owned (jointly, severally or individually) 41 Empire Street, Haberfield (Lot 11/DP 1247934) as well as several other properties. Mr Singh then referred to property valuations for these properties, as indicated in Mr Cappello's affidavit of 16 November 2021. For 39 Empire Street, Haberfield, this was $2.85 million; for 41 Empire Street, this was $1.83 million. 5. As to the position of the Claimant, Mr Singh's searches indicated that the director, secretary and indeed single member of this entity was Mr Robert Coshott; and that he resided at the 41 Empire Street property owned by Mrs Cappello. 6. Mr Singh observed that whereas the deed that the Claimant relied upon was dated 31 October 2023, the certificate of costs determination, upon which the execution creditor relied preceded this, being dated 23 December 2021 (with the review panel's determination occurring on 31 March 2022). 7. Unsurprisingly, in light of its position conveyed to the Sheriff's Office, Homebuilding did not serve a notice of admission of the claim on the Sheriff pursuant to r 43.5 of the UCPR. The Sheriff's Notice of Motion 1. On 26 August 2024, the Sheriff filed a notice of motion, purportedly pursuant to r 43.6 of the UCPR, by which the Sheriff sought a determination of the ownership of the goods listed in the Claimant's Notice by interpleader. 2. The notice of motion identified the NSW Sheriff's Office as the person seeking the orders. Senior Sergeant Natasha Cubric was identified as the contact name and a contact email address was described as 'teams.enforcement@justice.nsw.gov.au'. 3. Senior Sergeant Natasha Cubric affirmed a supporting affidavit dated 26 August 2024 (Exhibit A on the application). She deposed to being a Senior Sergeant at the Civil Enforcement Command, NSW Sheriff's Office (located in Parramatta). 4. By a separate affidavit (4 September 2024, Exhibit B on the application), Senior Sergeant Cubric deposed that she used her work email address to serve her affidavit of 26 August 2024 on the solicitors for Homebuilding, Mr Cappello and the Claimant. 5. On the day of the hearing, the Sheriff's legal representative tendered a copy of an Affirmation of Office by Natasha Cubric of 23 March 2018 (Exhibit C). Directions to manage the motions 1. There was a mention in Court of both the interpleader and HomeBuilding's motion at 2pm on 27 August 2024. The Cappellos and the Claimant did not appear, despite being notified of the mention by email, by my Associate, of the Court date on 16 August 2024 (11:13am). 2. The application for interpleader and HomeBuilding's motion were each made returnable for hearing on 6 September 2024. Directions were made for the exchange of submissions and further evidence. 3. Given that they did not attend on 27 August 2024, my Associate sent an email to Homebuilding, the Cappellos and the Claimant that afternoon (3:13pm) attaching the directions that I made earlier in the day. In the final paragraph of that email, my Associate noted the absence of the Cappellos and the Claimant at the mention earlier in the day; and the parties were effectively warned that orders may be made on 6 September 2024 in the absence of the parties attending on that date without further notice. 4. It is appropriate to deal first with the interpleader. Depending on the result of that, it may obviate consideration of HomeBuilding's motion. Submissions on the interpleader application The Claimant's submissions 1. On behalf of the Claimant, its director, secretary and sole member, Mr Coshott, supplied the Court with short written submissions (MFI 1). He essentially made two points. 2. First, the Sheriff's interpleader was invalid. The director cited requirements that a copy of the Sheriff's interpleader be signed, filed, sealed and personally served on the Claimant. Further, he cited an additional requirement under the Sheriff Act 2005 (NSW), ss 3 and 6(1) for the limited persons authorised to exercise the functions of that office. He submitted that the person whose name appeared on and signed the motion (Senior Sergeant Cubric) was not one of those persons. 3. The director submitted that consequentially, the Court was not empowered to grant the interpleader's relief. Further, the director argued that his point regarding invalidity of the motion was unanswerable. 4. Secondly, and alternatively, the objection of HomeBuilding (as 'execution creditor') to the Claimant's notice was misconceived. Mr Coshott understood HomeBuilding as submitting that the deed did not create a trust over the judgment debtors' goods. But the director argued that r 43 did not provide that any claim was confined to one being in trust. He referred me to a decision of the Court of Appeal in Roberts v Investwell Pty Ltd (in liq) [2021] NSWCA 134 as authority for the proposition that a charge over property creates an enforceable interest in property; which the Court can lend its protection to. 5. Mr Coshott indicated that he would not appear in Court on 6 September 2024. Further correspondence regarding the Sheriff's notice of his intention to attend the hearing 1. In light of the content of the first of the Claimant's submissions, referred to above, I arranged for them to be forwarded, by my Associate, to the Sheriff's Office. This occurred on 2 September 2024 (9:06am). 2. On 3 September 2024 (at 5:23pm) an indication was supplied to the Court that the Sheriff intended to appear at the hearing. 3. Upon receipt of that indication, and mindful of Mr Coshott's earlier indication that he did not contemplate appearing at the hearing, on 4 September 2024 (at 2:03pm), I arranged, by further email from my Associate to Mr Coshott, for the Sheriff's message about their foreshadowed appearance (on 6 September) to be brought to Mr Coshott's attention. My Associate's message to Mr Coshott indicated that my purpose was to give Mr Coshott the opportunity to attend the Court in order to respond to the Sheriff's submissions by appearing on 6 September. At 3:15pm, on the same date, Mr Coshott thanked me for that notification of the Sheriff's proposed attendance, but stated that the Claimant was content to rely upon its written submissions. 4. On the date of the hearing of the motions, 6 September 2024, there were no appearances by the Cappellos or by the Claimant. The Sheriff's submissions 1. Mr Marshall of Counsel appeared for the Sheriff. He made two broad submissions. First, the Sheriff's motion was not invalid for want of compliance with Court rules or, alternatively, if it was such procedural irregularities as there were found could be cured. Secondly, acknowledging that the requirement for personal service had not been complied with, the Court could make an order for informal service. Absence of signature 1. The Sheriff admitted that there was an absence of signature on the notice of motion (even though the name of the person bringing the motion, Sen Sgt Cubric was identified below it). 2. The Sheriff indicated that there was some doubt whether there was a requirement for signature; although accepted that there was probably at least an implied requirement. Part 18 of the Court Rules dealing with motions does not expressly stipulate such requirement. Still, it was noted that, by 17(3) of the Civil Procedure Act 2005 (NSW), where there was an approved form (in this case Form 75) and an apparent signature block, it would be expected that a signature would be applied. 3. Nevertheless, it was submitted that s 63(3) of the Civil Procedure Act empowered the Court to make curative directions. This amongst other things could be a direction for the Sheriff to file an amended notice of motion bearing the signature of the person bringing the motion; as well as adding page 3 of the prescribed form; which had been missing from the motion that was filed on 26 August 2024. As will be indicated momentarily, another direction that could be made, depending on the success of another argument Mr Coshott raised, would be for the Sheriff to arrange for a sealed copy of its (amended) notice of motion to be served upon the Claimant. Requirement that motion be 'sealed' 1. Mr Coshott took a point that the Sheriff's notice of motion was not sealed. 2. It is not obvious what the source of such obligation on a party to serve a 'sealed' document was. Mr Coshott did not refer to it. It is not apparent in Parts 10 (service) or 18 (motions) of the Court Rules. There is a requirement in r 4.12 of the UCPR for an officer of the Court to apply the Court's seal for the purpose of service of an 'originating process'. But what the Sheriff was purportedly serving was not a statement of claim or summons (r 6.2). 3. At any rate, the point fails on the facts. In my version of the notice of motion, the familiar seal of the District Court is apparent, if only in a somewhat blurred condition. The validity of Senior Sergeant Cubric's action in bringing the motion 1. Mr Marshall drew my attention to ss 5 and 6 of the Sheriff Act 2005 (NSW). 2. Before I refer to that however, I note that under s 4(1)(c), one of the Sheriff's functions is described as 'civil law enforcement functions given to the Sheriff by or under this Act and other Acts'. I do not doubt that 'other Acts' would in this context include the Civil Procedure Act and court rules made pursuant to that particular legislation. 3. Section 6(1) generally provided that in relation to two kinds of legal proceedings, the sheriff's functions were to be exercised by the 'sheriff's alternate, and not by the sheriff. The expression 'sheriff's alternate' was defined (s 3) to be such person as to be declared by the regulations to be the sheriff's alternate (for the purposes of the same legislation) or, if no such person was declared, the Secretary. (The 'Secretary' meant the Secretary of the department administering the Act). The Court was informed from the Bar table that the relevant department was the Department of Communities and Justice ('DCJ'). Mr Marshall informed the Court that the Sheriff Regulation 2021 (NSW) did not identify a Sheriff's alternate for the purpose of s 6 of the Sheriff Act. [1] 4. Consequently, the 'Sheriff's alternate' was, for the purpose of s 6 of the Sheriff Act, the Secretary of the DCJ. 5. However, Mr O'Connor submitted that neither of the categories of legal proceedings referred to in s 6(1) of the Sheriff Act were engaged. This was not a legal proceeding "to which the Sheriff was a party" (s 6(1)(a)). The Sheriff's position to this proceeding was analogous to that of a third party, and its interpleader was analogous to an application by a recipient of a subpoena to set it aside. 6. Nor was it a proceeding the subject of an order under s 6(2) (s 6(1)(b)). Such a legal proceeding was one in which (relevantly) the Court may, if satisfied that the proceeding may affect the Sheriff's interests, order that the Sheriff's functions be exercised by the Sheriff's alternate. No such order had, however, been made. 7. Thus, it was said, there was no legislative or regulatory imperative for the Sheriff's motion here to be brought by the Sheriff's alternate. 8. Mr Marshall then referred to s 5. By combination of ss 4(1)(c) and 5(1)(a) of the Sheriff Act, the Sheriff may delegate any of the Sheriff's functions to "any Sheriff's officer". 9. With reference to Exhibit C, Senior Sergeant Cubric is one such 'Sheriff's officer'. Therefore, she had the authority or power to bring the motion. She brought it, as a Sheriff's officer, on the Sheriff's behalf, exercising the Sheriff's civil law enforcement functions. Personal service 1. By r 43.6(2) and (4) of the UCPR, service of a Sheriff's interpleader application must be effected personally on claimants who, in the Claimant's position, are not a party to the legal proceeding. 2. The Sheriff concedes that the Sheriff's motion did not comply with the requirement for personal service in Division 3 of Part 10 of the UCPR. 3. However, Mr Marshall referred to paragraph 5 of Mr Coshott's written submissions (MFI 1 on the application) which plainly indicated his awareness of the Sheriff's notice of motion; manifested by his filing written submissions in response to it. 4. It is also the case, although Mr Marshall did not refer to the point, that Senior Sergeant Cubric arranged to serve the motion, and the supporting affidavit on 26 August 2024; by email to the same working email address for the Claimant that appeared on the Claimant's Notice of 22 July 2024, which is 'litfundwcx@gmail.com'. 5. In the circumstances, Mr Marshall submitted that the Court should make an direction under r 10.14(3) of the UCPR; which, if such direction was made, would (by r 10.14(4)) effectively deem personal service as having been effected. 6. Mr Marshall also made some further submissions as to appropriate orders that might follow, but this was affected by the contingency of whether the Court accepted HomeBuilding's submissions, to which I will now turn. HomeBuilding's submissions 1. By its written submissions on the application (MFI 2), HomeBuilding referred me to certain powers and principles concerning interpleader applications. HomeBuilding's Counsel wrote: "The Court may make such orders and directions as it thinks fit for the hearing and determination of all matters in dispute; UCPR r43.7(1). Rule 43.7(2) sets out a number of specific powers but does not limit the effect of; UCPR r43.7(1). If a claimant, after due notice does not appear at the hearing or comply with an order made in the proceedings, the Court may order that the claimant and those claiming under the claimant, be barred from prosecuting the claim against the applicant; UCPR r43.8. lnterpleader is not available in respect of a claim for unliquidated damages; Ingham v Walker (1887) 3 TLR 448. The applicant for an interpleader order must establish an expectation that, if not already sued, a claim will be made. It must appear that there is a real foundation for the expectation; Watson v Park Royal (Caterers) Ltd [1961] 2 All ER 346 at 352. The remedy is discretionary; UCPR r43.7 and may be defeated by delay. The Court may dismiss an application by a stakeholder or give judgment against the stakeholder, unless it is satisfied that the stakeholder claims no interest in the disputed property expect for charges and costs, and is not in collusion with any claimant; UCPR r43.9(1). The Court may also dismiss the application if it finds that the applicant is intermeddling in the proceedings; Smith v Nixon (1885) 7 ALT 74. 1. HomeBuilding construed the nature of the Claimant's notice as positing an equitable floating charge in security for a line of credit; which charge was over all of the Cappellos' assets. This charge was said to 'crystallise' when the advance became due and payable; on or before 31 October 2028. 2. From that understanding, HomeBuilding cited several reasons why the claim must fail: 1. assuming, for the sake of argument, that the unregistered charge was even valid, there was no evidence of any debt requiring repayment to the Claimant. Specifically, there was no evidence of the extent to which, if at all, the Cappellos had drawn down on their line of credit; 2. (consequentially from (a)), the Claimant's claim could not be said to amount to a liquidated claim; 3. the property searches in Mr Singh's affidavit disclosed that the Cappellos' owned many valuable real properties. The Claimant cannot maintain a charge over property in excess of the maximum amount contemplated in the asserted line of credit; 4. the charge has not crystallised. It would only crystallise on 31 October 2028; 5. HomeBuilding's claim takes priority and, further (and unlike the Claimant's claim) is secured by caveat; and 6. given that Mr Coshott had, with notice of the hearing date, foreshadowed that neither he nor anyone else would appear for the Claimant, the Court would be entitled (under r 43.8 of the UCPR) to order that the Claimant be barred from prosecuting the claim against the applicant and those under it and the Court should do so for all of the above reasons. 1. Further, HomeBuilding submitted, with reference to the authority of Smith v Nixon (1885) 7 ALT 74, that the Court may dismiss the application if it finds that the applicant is 'intermeddling' in the proceeding. In that connection, HomeBuilding submitted that the Court should find that the Claimant is intermeddling. It relied upon the following facts: 1. The director of the Claimant, Mr Coshott is not an arm's length litigant: he was struck off as a solicitor in 1997, made bankrupt in 2008. 2. He is the neighbour of the Cappellos, at 41 Empire Street, Haberfield. 3. There were indications or suggestions made in the Supreme Court proceedings before Ball J that Mr Coshott was involved in the drafting of process in those proceedings on the Cappellos' instructions. 1. Homebuilding invited the Court to infer that Coshott is intermeddling from the additional matters: 1. his involvement in this proceeding and a paucity of evidence surrounding the line of credit; 2. Mr Coshott's 'bizzare' reaction to the Sheriff's interpleader application which would effectively protect his claim, by citing technical points against the validity of the Sheriff's motion. This, HomeBuilding asserts, was intended for the collateral purpose of frustrating HomeBuilding's enforcement of its costs orders. Consideration of interpleader 1. I will address first, the somewhat technical arguments about the UCPR raised by Mr Coshott and the Sheriff's responses to those arguments. I will then address HomeBuilding's challenge to the merits of the Claimant's claim that prompted the Interpleader. 2. I accept on the probabilities that there was a requirement for the Sheriff's notice of motion to be filed that bore the signature of the person who brought the application. The fact that it was not does not invalidate the motion. It is, rather, an irregularity which can be cured by direction. I reject the argument that the motion was not 'sealed' assuming (which is unnecessary to decide) that there is a requirement for the Court seal to be applied to the motion. The motion was not personally served on the Claimant, but the Claimant was well aware of, and actually responded to it. A direction for informal service should also be made. 3. I accept the Sheriff's submissions and find that Senior Sergeant Cubric was authorised, as a Sheriff's officer to exercise on behalf of the Sheriff, and pursuant to the Sheriff's function of civil law enforcement, to bring the notice of motion. 4. For those reasons, and subject to order 2 referred to later in these reasons, the Sheriff's notice of motion is valid. 5. On the substantive challenge to the merits of the Claimant's claim, I substantially agree with most of HomeBuilding's submissions. The nature or character of the Claimant's claim is as HomeBuilding contends. There is in fact a paucity of evidence that would sustain a liquidated claim, and I am fortified in that conclusion by Mr Coshott's foreshadowed, but nonetheless unexplained, failure to attend Court on the hearing date; a circumstance which, either by design or effect (or both), meant that he could not be exposed to cross-examination on his affidavit in support of the Claimant's notice of 22 July 2024. As to the paucity of evidence, he did not establish that the charge had crystallised nor proved the existence of a debt. 6. If it was necessary to do so, I would have been inclined to order that, pursuant to r 43.8 of the UCPR, the Claimant be barred from prosecuting the claim against the applicant. 7. Further, it is plain that Mr Coshott carries reasonably close connections with the judgment debtors; and I conclude that this is so even without needing to make findings about the plainly articulated suspicions held in the Supreme Court proceeding about the nature of his assistance to the Cappellos in that proceeding. There is a prima facie case that he should be regarded as an 'intermeddler'. Again, his decision not to appear in support of the company's notice and failure to counter the inference against him when he had the opportunity to do so fortifies that conclusion. I think on balance it can fairly be said that he can be described as an intermeddler. 8. In the light of the above conclusions, the appropriate course is to dismiss the Claimant's notice pursuant to rr 43.7(1) and 43.7(2)(e) or (g) of the UCPR. 9. On that basis, there is no continuing utility in the Interpleader application. It should also be dismissed. Submissions on HomeBuilding's application The Cappellos' submissions 1. Neither of the Cappellos attended to oppose HomeBuilding's notice of motion; despite notice of it. Nor (unlike Mr Coshott) had they separately supplied any written submissions. HomeBuilding's submissions 1. In the Cappellos' absence Mr O'Connor had little more to say; other than to note that the form of the orders sought had been crafted with the assistance of the Sheriff's Office. 2. This matter was, incidentally, confirmed by Mr Marshall, for the Sheriff. Consideration of Homebuilding's Motion 1. There is no reason not to accede to Homebuilding's application or the terms of the relief that it seeks. As I indicated, it is essentially a reformulation of earlier orders sought by, and granted to, HomeBuilding; but this time crafted with the guidance of the Sheriff's office. Costs 1. Counsel for the Sheriff referred me to a decision of Gzell J, being Kennett v Charlton [2007] NSWSC 190 where (at [11] and [22]) his Honour applied earlier authority [2] to the effect that where the applicant on an interpleader summons promptly comes to Court when faced with conflicting claims, and whose conduct has not increased costs, prima facie, the applicant should be entitled to indemnity costs. 2. In my view, that principle is engaged here. 3. Counsel for HomeBuilding also argued for his client's costs of the interpleader application on an indemnity basis. HomeBuilding, unlike the Sheriff, had recourse to the circumstances of the case and did not have the benefit of an established principle to guide the costs discretion. Reliance was principally placed upon the proposition that Mr Coshott, or the company, was an intermeddler and had acted for collateral purposes. 4. However, even though I have accepted characterisation of an intermeddler, it concerns me that there is nothing to indicate any intention notified to Mr Coshott, on HomeBuilding's part, to seek an order that, following rejection of the Claimant's claim, HomeBuilding's costs should be payable on an indemnity basis, and the reasons why. I note, in this regard, that HomeBuilding did not indicate in its written submissions that it wished to be heard on costs. Had it given notice of this intention, it is possible that it might have served to provide some incentive to Mr Coshott to withdraw the Claimant's claim before the hearing. 5. I reject HomeBuilding's application for its costs to be paid on an indemnity basis. HomeBuilding should have its costs on the Claimant's claim paid on the ordinary basis. Orders 1. The Court orders: 1. Pursuant to r 10.14(3) of the Uniform Civil Procedure Rules 2005 ('UCPR'), the Sheriff's Notice of Motion dated 26 August 2024 is taken to have been served on Litigation Fund WCX Pty Ltd on 26 August 2024. 2. Within 7 days of these orders, pursuant to s 63(3)(b) of the Civil Procedure Act 2005 (NSW), the Sheriff is to file an amended Notice of Motion (a) bearing the signature of the person bringing the motion; as well as (b) adding the information contained in page 3 of the prescribed form. 3. The claim encapsulated in the Notice to Sheriff of Disputed Property dated 22 July 2024 is dismissed. 4. Pursuant to r 43.7 of the UCPR, the Sheriff's Notice of Motion of 26 August 2024 is dismissed. 5. Litigation Fund WCX Pty Ltd is to pay the Sheriff's costs of and occasioned by the Claimant's Notice dated 22 July 2024 on an indemnity basis, as agreed or assessed. 6. Litigation Fund WCX Pty Ltd is to pay HomeBuilding's costs of and occasioned by the Claimant's Notice dated 22 July 2024 on the ordinary basis, as agreed or assessed. 7. The Sheriff's Office is authorised to enter premises located at 39 Empire Street, Haberfield, 2045 (NSW) for the purposes of seizing and taking possession of goods under the Writ for Levy of Property. The Sheriff's Office may enter the premises using such force as is reasonably necessary to do so. 8. The Sheriff's Office is authorised to re-enter premises located at 39 Empire Street, Haberfield, 2045 (NSW) to remove any seized items or to sell the seized items on-site. 9. The Sheriff's Office is authorised to request that any member of the Police Force assist the Sheriff's Office to enforce the order for entry. 10. Mr and Mrs Cappello are to pay HomeBuilding's costs of and occasioned by its Notice of Motion dated 2 July 2024 as agreed or assessed. ********** Endnotes 1. It appears from reg 4 of the Sheriff Regulation 2021 (NSW) that only the sector supervisor of the NSW Police Force on Lord Howe Island was prescribed as a person to whom the Sheriff may delegate his or her functions under s 5 of the Sheriff Act. 2. McPherson, Thom & Co v Sandhurst and Northern District Trustees, Executors and Agency Co Ltd (1929) The Argus Law Reports 240 at 241 Amendments 10 September 2024 - Deleted 'it is' from paragraph [73] 11 September 2024 - Replaced 'alternative' with 'alternate' in paragraph [58] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2024