Walkden v Council of the City of Townsville
[2004] QDC 23
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- Unreported Judgment
- Walkden v Council of the City of Townsville[2004] QDC 23
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Walkden v Council of the City of Townsville[2004] QDC 23
Walkden v Council of the City of Townsville[2004] QDC 23
![Walkden v Council of the City of Townsville [2004] QDC 23](/judgmentview/image?name=315808.001.png&id=315808)
DISTRICT COURT OF QUEENSLAND
CITATION: | Walkden v Council of the City of Townsville & Anor [2004] QDC 023 |
PARTIES: | JULIA ANNE WALKDEN v THE COUNCIL OF THE CITY OF TOWNSVILLE and MAGNETIC KEYS LIMITED |
FILE NO: | 3491 of 1996 |
PROCEEDING: | Leave to start enforcement proceedings |
DELIVERED ON: | 26 February 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 February 2004 |
JUDGE: | Judge Brabazon QC |
ORDER: | Application dismissed |
CATCHWORDS: | PROCEDURE – QUEENSLAND – PRACTICE UNDER THE RULES OF COURT – ENFORCEMENT PERIOD – where the is an application to seek leave to start enforcement proceedings – Interpretation of rule 799 PRACTICE – APPLICATION AND TIME OF ISSUE – QUEENSLAND – Leave to start enforcement proceedings after six years – Discretion of Court Limitations of Actions Act 1974, s 10(4) Uniform Civil Procedure Rules r799 World Square Pty Ltd v Taylor (1990) 1 Qd R 583 Tonkin v Johnson (1999) 2 Qd R 318 |
COUNSEL: | Mr M Burnett for the respondent/ applicant Mr D Thomae for the appellant/ respondent |
SOLICITORS: | Robert Nehmer McKee for the applicant Bain Gasteen for the respondent |
- [1]On 15 December 1989 the Council obtained a costs order against Ms Walkden. However, she has still not paid the costs. The Council now asks for this court’s leave to start enforcement proceedings against her.
The Rules of Court
- [2]The application is made under Rule 799 of the Uniform Civil Procedure Rules:
“Enforcement Period
- (1)An enforcement creditor may start enforcement proceedings with-out leave at any time within six years after the day the money order was made. In addition to another law requiring a court’s leave before an order may be enforced, an enforcement creditor requires a court’s leave to start enforcement proceedings if –
- (a)it is more than six years since the money order was made; or
- (b)…
- (2)…
- (3)On an application for leave to start enforcement proceedings, the applicant must satisfy the court –
- (a)as to the amount, including interest, owing at the date of the application; and
- (b)if it is more than six years since the money order was made as to the reasons for the delay; and
- (c)…
- (d)that the applicant is entitled to enforce the order; and
- (e)that the enforcement debtor against whom enforcement is sought is liable to satisfy the order.”
The Facts
- [3]In 1989 the former Local Government Court of Queensland heard an appeal about a development approval affecting land at Nelly Bay. The Council had approved the application by Magnetic Keys Limited. Ms Walkden was the appellant, and she raised many objections to the approval.
- [4]The appeal was dismissed. The judge ordered that she pay to the Council and to Magnetic Keys 80% of their costs of the appeal.
- [5]That court’s power to order costs was found in s 28 of the City of Brisbane Town Planning Acts 1964-1967 –
“The Court may make such order as it thinks fit as to the costs of any proceedings heard and determined by it, … . Any such order may be made an order of the District Court and enforced accordingly … The Court may in its discretion order that such costs shall be ascertained and fixed by the proper costs taxing officer of the Supreme Court at Brisbane, according to the scale of costs prescribed by law for the time being in respect of proceedings in the District Court …”
- [6]Ms Walkden appealed to the Full Court of Queensland. It dismissed her appeal in July 1990.
- [7]The Council believed that Ms Walkden had no assets, and that it would be pointless to proceed to enforce the costs order. That was the attitude of the Council in August 1991. After almost three years the Council changed its attitude. In May 1994, it requested its solicitors to prepare a bill of costs in taxable form.
- [8]In April 1995 Ms Walkden wrote to the CEO of the Council. She said that her financial resources were limited, and that a futile attempt to pursue her for costs would be an expense to ratepayers of well over $10,000. She also observed that there had been a change to the costs regime in 1990. That was in reference to the provisions of the Local Government (Planning & Environment) Act of 1990. Section 7.6 said that each of the parties to an appeal was to bear their own costs, except in certain undesirable circumstances that were set out.
- [9]In May 1995 she wrote to the Registrar of the Supreme Court of Brisbane. That letter said this:-
“… The Townsville City Solicitor has informed me that the bill of costs is presently being drawn up in Brisbane, and will shortly be filed for taxing at the Supreme Court in Brisbane … .
Rule 372 of the District Court Rules requires that the bill of costs shall be filed, in a taxable form, within 12 months of the date of the judgment. This was not done, as the Council was well aware that I had expended all my resources in paying my own appeal costs. Now, nearly six years later, even though my financial circumstances have not improved, the Council has decided to pursue these costs …
Rule 372 also gives you the discretion to grant an extension of time for filing the Bill of Costs. Before you do so, I wish to be heard on this matter, as I have been prejudiced by the lengthy delay. …”
- [10]Her reference to R 372 was accurate. It said this:
“Filing Bill of Costs
In all cases in which a solicitor shall have been employed by either party and such party shall recover costs of action, the amount whereof has not been determined by the judge at the hearing, the solicitor of the party entitled to such costs shall, at any time within 12 calendar months after the date of judgment, file his bill of costs in taxable form with the Registrar, who shall thereupon fix a time for the taxation thereof. A copy of such bill of costs, with the appointment endorsed thereon, shall forthwith be served on the opposite party … .Provided also that the time for filing a bill of costs may be extended by the Registrar or taxing officer before or after the period aforesaid shall have expired.”
- [11]That rule was repealed in 1996.
- [12]I have seen the court’s file containing a record of the taxation of costs. Ms Walkden’s letter reached the taxing officer. She filed objections to the bill of costs, and also wrote a further letter saying “… I therefore request that you use your discretion to keep the costs at the lowest rate having regard to the change in legislation and the fact that costs would not be awarded against me today”.
- [13]The taxation took place on 17 November 1995. Ms Walkden did not appear. The Council was represented. The above letters were noted. The record of the taxation concludes this way:
“In my opinion District Court Rule 372 does not apply to the present circumstances but if I be wrong in that view I have considered the matter and would extend time accordingly.”
- [14]On 29 November 1995 the Deputy Taxing Officer issued a Certificate of Taxation, allowing the costs in the sum of $36,841.70.
- [15]In April 1996 the Council’s solicitors sent a letter of demand for that amount to Ms Walkden. She responded in a letter of 24 April 1996. The letter asserted that she had assets of only $1,000, and a modest weekly income from a part-time job. She said that her assets had been exhausted by the payment of her own legal expenses in the Nelly Bay matter.
- [16]The Council wished to take the matter further. On 26 September 1996 it filed in the District Court a Certificate of Judgment of the Local Government Court, recording the results of litigation, and that the amount of costs taxed and allowed against her was $36,841.70. That procedure followed Rule 24 of the Local Government Court Rules. The judgment became a judgment of the District Court, and be enforceable in the District Court. That document allowed the Council to ask for an order for oral examination, so that the extent of her financial position could be revealed on oath. That order was made in this court in December 1996.
- [17]It appears that order was never served upon her, as the Council’s agents could not find her. The Council resolved to review the question of recovery at regular intervals.
- [18]Ms Walkden’s affidavit explains where she was living at the time, and the Council’s means of knowing or discovering her address. It should be accepted that she had not taken any deliberate steps to hide, or disguise her current address. For a time she worked in Singapore. When she was in Australia, her address was always noted on the electoral role. She sent some correspondence to the Council, which contained her address.
- [19]In May 1998 Council obtained a further order for her oral examination. This was served on her, and the examination was conducted on 29 June 1998. She said that she had no assets.
- [20]Time passed. On 9 April 2002 she became the registered proprietor of an unencumbered half interest as tenant in common of a property at Boreen Point. That is where she is now living.
- [21]In later November 2002 the Council resolved to take proceedings to finalise action for the recovery of costs. A search in February 2003 revealed her part ownership of the Boreen Point property. The Council then started bankruptcy proceedings in the Federal Court. However, those proceedings were ineffective, as more than six years had passed after the day the money order was made, and the enforcement proceedings were effectively stayed. As a consequence the bankruptcy proceedings could proceed no further.
- [22]The Council now asks this Court for leave to start the enforcement proceedings. The purpose of the order is to give the Council the right to recommence the bankruptcy proceedings.
- [23]The Council’s application was filed on 18 December 2003. It was served on her just before last Christmas, at the Boreen Street property.
The Discretion
- [24]The Council asks for the leave of the court to proceed, despite the delay. There are several things to be considered. First, there is the extent of the court’s discretion. It was submitted for the Council that Rule 799 meant that the court no longer had a discretion to refuse leave, once the requirements of Rule 799(4) were satisfied. It was recognized that there had been a discretion under the previous Rules of the Supreme Court – see the decision of Master Lee in World Square Pty Ltd v Taylor (1990) 1 Qd R 583.
- [25]Rule 799 sets out some minimum requirements for the grant of leave. They are not meant to be the only things that the court can consider. For example a judgment creditor might make a full and frank explanation about the reasons for the delay, but the delay may be so extreme as to prevent leave being given. A discretion still exists, and the court must consider all the relevant circumstances.
- [26]Secondly, this is an enforcement proceeding, rather than an action upon the judgment of the Local Government Court, which ordered costs to be paid. The distinction is a significant one. The position is made quite clear by the Queensland Court of Appeal in Tonkin v Johnson (1999) 2 Qd R 318. There is an historic distinction between the right to sue on a judgment, and the right to issue execution under the judgment. The latter is being considered here.
- [27]If this were an action on the judgment, then it would attract the period of limitation set out in s 10 of the Limitations of Actions Act 1974. Section 10(4) says that an action shall not be brought upon a judgment after the expiration of 12 years from the date on which the judgment becomes enforceable. As the Court of Appeal in Tonkin explained, where damages are to be assessed the judgment is not enforceable until that assessment is complete. There is no reason to think that the assessment of costs would be in any different position. Therefore, the judgment in this case became enforceable in November 1995, when the certificate of taxation was filed. The 12 year limitation period will expire in 2007.
- [28]If the Council had observed the 12 months’ time limit in R 372, the limitation period would have expired in 2003. While this is not an action brought upon that judgment, the impact of a limitation period can be taken into account as a discretionary consideration – see Tonkin at 326.
- [29]The conduct of the debtor in Tonkin meant that the Court had no sympathy for him. He made a considered decision not to defend and not to apply to have the judgment against him set aside until it became imperative to do so. He chose not to answer interrogatories administered to him by the plaintiff. He claimed poverty, but that was not borne out by the frequency with which he travelled to various destinations overseas, sometimes for lengthy periods. There were 12 overseas trips, including one to the United Kingdom so that he could be married there. His failure to do anything to defend the action, to oppose the judgment, or to move promptly to have it set aside, were considered decisions on his part. He had failed for 10 years to pay the judgment debt, and there was no reason why the statutory interest should not have been paid in full. He deliberately took the risk that the plaintiff would never attempt to enforce the judgment. He elected to defy or ignore the efforts of the plaintiff to enforce her rights against him. .
- [30]It may be accepted that the dominant consideration for the Council was the fact that nothing could be recovered from Ms Walkden, who had no assets. Here, there was nothing to suggest that Ms Walkden was other than truthful in saying that she had no assets. There is also nothing to contradict her account of her present financial position. She owns a 1998 vehicle worth about $2,000. She is employed part-time by Blue Care as a personal carer, working in aged and community care. Since February 2003 she has been a tenant in common of unencumbered property at Boreen Point. Otherwise, her personal possessions would have a value of less than $1,000, and her present wage is about $22,000 a year. She is aged 61 years. She says that she uses the vehicle to carry out her carer’s job.
- [31]With regard to the property, she says that she has contributed $8,000 towards its purchase, and that was money saved out of her wages. She has an agreement with her co-owner to pay off the balance of the one-half purchase price of the house. There is no evidence as to the purchase price, or the present market value of the land. Any issues about priority of payment out of her estate were not explored here.
- [32]The Council could have started enforcement proceedings without leave at any time within six years after the day the money order was made. The six years ran from the date of the certificate of taxation, when the order became enforceable. That was 29 November 1995. The six years expired on 29 November 2001. If there had not been such delay in asking for the taxation of the bill of costs, then six years would have expired some time in about 1997 making an allowance for the taxation to take place.
- [33]Bearing in mind the delays on behalf of the Council, Ms Walkden’s own conduct, and the uncertain return which the Council would obtain in bankruptcy proceedings, it is difficult to see why the Council should have leave to commence enforcement of proceedings. It is true that the formal requirements of R 799(3) have been met. However, the dominant fact is that fourteen years have passed from the original judgment to the application for leave to enforce the costs order. The limitation period has not expired, but only because there was a long delay in arranging the taxation of the bill of costs. The prejudice to Ms Walkden should be taken into account. It was a relevant factor in World Square, where leave would have been refused on discretionary grounds. Being ordered to pay the Council’s costs was a misfortune, but it is not a prejudice Ms Walkden can complain about. The prejudice consists of being asked to pay the costs at a time when her expectation would be that the Council’s claims had come to an end. The time limits explained above show that such an expectation would be a reasonable one. The community (which includes her co-owner whose interests would almost certainly be affected by bankruptcy proceedings) also expects that litigation should come to an end.
- [34]The application is refused. Counsel may make submissions about costs.
Costs
- [35]Counsel for Ms Walkden asks for the costs of this application. Counsel for the Council submits that the most appropriate order is simply that there be no order of costs.
- [36]Mention was made in submissions of r. 696 of the UCPR which says that:
“A party applying for the extension or shortening of the time set under these rules must pay the costs of the application, unless the court orders otherwise”.
- [37]This application under r. 799 would not seem to be an application for the extension or shortening of a time limit. It is an application for leave. In any event, the court has the usual discretion about costs, so that all relevant facts are taken into account.
- [38]Here, the main fact is that Ms Walkden has been successful in resisting the Council’s application. She is a respondent in an application that was made against her. It would be very unusual to deny a costs order in favour of the successful respondent.
- [39]It was suggested that the decision depended on a matter that were not argued at the hearing, - that is, the delay in arranging the taxation of the bill of costs.
- [40]Taking that delay into account it is hardly surprising. It is apparent from the affidavit filed on behalf of the Council. Ms Walkden’s letter, referring to the District Court Rule, is exhibited to that affidavit. Council’s decision not to have the costs taxed for a considerable time was entirely clear on the material. It was obviously a relevant fact.
- [41]The applicant must pay the respondent’s costs of the application, to be assessed on the standard basis.