Wentworth v Rogers & Anor (No. 2) [2002] NSWSC 674

New South Wales Supreme Court

CITATION : Wentworth v Rogers & Anor (No. 2) [2002] NSWSC 674 FILE NUMBER(S) : SC 019228/82 HEARING DATE(S) : 28/11/01, 05/04/02 JUDGMENT DATE : 20 August 2002

PARTIES : Katherine Wentworth v Gordon John Rogers & Anor JUDGMENT OF : Howie J at 1

COUNSEL : Plaintiff in person Defendant in person SOLICITORS : - - CATCHWORDS : Costs - Jurisdiction - Interest on costs Supreme Court Rules - Pt 40 r 3 LEGISLATION CITED : Legal Profession Act 1987 - cl 45 schedule 8 Supreme Court Act 1970 - s 95(4) CASES CITED : Wentworth v Rogers (Application for Interest on Costs No. 1) [2002] NSWSC 651 Wentworth v Wentworth (NSWCA, Handley JA, 4 December 1998 unreported) DECISION : The application is refused and no order is made as to costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Howie J

TUESDAY 20 AUGUST 2002

019228/82 KATHERINE WENTWORTH v GORDON JOHN ROGERS & ANOR

JUDGMENT ON APPLICATION FOR INTEREST ON COSTS NO. 2 1 His Honour: The applicant, Ms Wentworth, seeks interest on costs awarded to her by the Court of Appeal when allowing an appeal brought by the applicant against a judgment made in favour of the respondent in December 1985. A similar application to the present was brought by the applicant in respect of an order for costs made in the applicant's favour against the respondent by Sully J. in 1994. I have dismissed that application, see Wentworth v Rogers (Application for Interest on Costs No 1) [2002] NSWSC 651. In that judgment I set out what I consider to be the relevant law and principles to be applied in determining such an application as the present. I do not intend to repeat them here but they have been applied by me in the present application. In that judgment I have also set out the circumstances in which I heard that application. The present application was heard at the same time and under the same circumstances. 2 There is a long and somewhat complicated history of proceedings between the parties in this Court. It is unnecessary to set it out in detail for the purposes of this judgment. The successful appeal by the applicant, from which the instant costs order arose, related to an action brought by the respondent for damages occasioned by, what was alleged to be, the malicious prosecution of him by the applicant. A jury determined those proceedings in favour of the respondent. However, the Court of Appeal set aside the judgment and orders entered by Maxwell J as a consequence of the jury's verdict. The judgment of the Court of Appeal was handed down on 6 March 1987 and on that date the respondent was ordered to pay the applicant's costs of the appeal. The claim, which was the subject of the appeal, has not yet been reheard. 3 The applicant did nothing to enforce the order for the costs of the appeal until very recently. It was not until 29 October 2001 that a certificate of assessment issued in respect of the order. The applicant's costs were assessed at $45,001.99. A judgment for that amount was entered by this Court on 31 October 2001 and took effect from the day. 4 During the period between the making of the costs order and the plaintiff making application to have the costs assessed, there was continuing litigation involving the applicant and the respondent. It is relevant to note that those proceedings have generally been conducted with vigour by both parties and most, if not all, steps that might have resulted in some tactical advantage for one or the other has been taken by them. From my experience litigation between the parties has been accompanied by considerable acrimony. 5 In the usual case, interest on unpaid money that is the subject of a judgment or order of this Court runs from the date that the judgment or order takes effect. However, Pt 40 r 3 of the Supreme Court Rules provides: Date of effect 3(1) A judgment shall take effect - (a) where it is given in Court - as of the date on which it is given; (b) otherwise -- as of the date of entry. (2)………….. (3) Subject to subrule (1) an order shall take effect as of the date on which it is made. (4) Notwithstanding subrules (1) and (3), where an order of the court directs the payment of costs and the costs are, pursuant to any Act or the rules, to be taxed, the order shall take effect as of the date of the certificate of taxation. (5) Notwithstanding subrules (1), (3) and (4), the Court may order that a judgment or order take effect as of the date earlier or later than the date fixed by those subrules.