FITZPATRICK v WATERSTREET [1997] NSWCA 108

FITZPATRICK v WATERSTREET

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 30 May 1997

[1997] NSWCA 108

Priestley JA. Miss Fitzpatrick and a company she owned and controlled brought proceedings as plaintiffs against Mr Waterstreet and Mr and Mrs Johnson as defendants in which the plaintiffs made various claims against the defendants related to real and personal property. The proceedings were heard by Brownie J. In them the plaintiffs charged the defendants with fraudulent conduct of various kinds. There was a major contest about the credibility of Miss Fitzpatrick, Mr Waterstreet and Mr Johnson in regard to material issues in the case.

The proceedings were heard in September 1995 and February 1996.

In his reasons for judgment Brownie J made adverse findings about Miss Fitzpatrick's credibility, and, to a considerable extent, apparently, on the basis of these findings, found against the plaintiffs, and on 15 March 1996 dismissed their proceedings. He ordered the plaintiffs to pay the costs of the defendants, those costs to be assessed on an indemnity basis in respect of work done on and after 18 September 1995.

Miss Fitzpatrick and her company appealed. Appeal books have now been prepared. There are six volumes of them, and I was told from the Bartable that there are two supplementary volumes of documents. The appeal is ready to proceed.

Pursuant to Brownie J's orders for costs, Mr and Mrs Johnson proceeded to have their costs assessed. The assessment was completed on 27 February 1997 in the sum of $150,525. The assessment was lodged in the District Court of New South Wales and became the judgment of that court. Mr and Mrs Johnson then made demand upon Miss Fitzpatrick and the company for payment. No payment was made, and the first steps in bankruptcy proceedings against Miss Fitzpatrick and winding up proceedings against the company have been taken.