Adler v Singer [2009] NSWSC 428

New South Wales Supreme Court

CITATION : Adler v Singer [2009] NSWSC 428

HEARING DATE(S) : 2 April 2009 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 2 April 2009

DECISION : No order as to costs.

CATCHWORDS : COSTS - Where defendant had not complied with order – where plaintiff inappropriately re-listed matter to threaten defendant without making contempt or other application - where defendant's conduct materially contributed to unnecessary application

CATEGORY : Procedural and other rulings

Ethel Adler (plaintiff) PARTIES : David Singer (first defendant) Simon Singer (second defendant)

FILE NUMBER(S) : SC 1548/09

COUNSEL : Mr D Cook Mr M Wilmott SC

SOLICITORS : Makinson & D'Apice (plaintiff) Bamford Associates (defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST

BRERETON J

Thursday 2 April 2009

1548/09 Ethel Adler v David Singer & anor JUDGMENT (ex tempore) 1 HIS HONOUR: On 27 March 2009, I made an order in terms of paragraph 1 of the interim relief sought in the notice of motion of 27 March 2009, namely, that the defendants take all necessary steps forthwith to cause to be transferred the entire funds held in a nominated bank account to the trust account of the plaintiff's solicitors. On 30 March 2009, the defendants' solicitors sent a facsimile to the plaintiff's solicitors referring to that order and asking, "Please enter his Honour's order and provide a copy so that our client can comply with it promptly." The plaintiff's solicitors responded by facsimile the same day, pointing out in my view correctly­ ­ that there was no reason why the order of 27 March had to be entered before the funds could be transferred, and that the defendant was present in court when the order was made. The letter concluded, "Would you please ensure that your clients transfer the funds without further delay. If your clients fail to do so we shall relist the matters and bring your client's contempt to the attention of the court." That threat is redolent of what is often seen in the inappropriate practice of threatening to bring parties before the court to berate them and draw their behaviour to the attention of the court, without making any particular application.