Merrin v Cairns Port Authority
[2005] QDC 236
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- Unreported Judgment
- Merrin v Cairns Port Authority[2005] QDC 236
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Merrin v Cairns Port Authority[2005] QDC 236
Merrin v Cairns Port Authority[2005] QDC 236
DISTRICT COURT | Brisbane Claim No 2553 of 2003 |
CIVIL JURISDICTION
CHIEF JUDGE WOLFE
ANNETTE ELIZABETH MERRIN and THOMAS WILLIAM MERRIN | Applicants/Plaintiff's |
and
CAIRNS PORT AUTHORITY | Respondent |
CAIRNS
DATE 06/07/2005
JUDGMENT
HER HONOUR: In this application the applicant/plaintiffs seek orders that this Court order funds paid out of the suitor's trust fund account 1000-7379 to Mr Williams Royds, solicitor of Cairns, be repaid to the District Court, that is, the sum of $11,401.42 plus 10 per cent interest from the 10th of October 2003.
They also seek an order that interest paid on any moneys held in the suitor's fund be paid out of Court directly to them and if I ordered that the appearance of both the Registrar and Mr Royds be ordered to appear today to give evidence under the Trust Act.
They also seek an order that this money be made available to them for costs incurred in relation to the trial which has been set down to commence on the 8th of July, and that Mr Royds supply to them all documents related to the first trial, “as these were covered in costs by the civil legal aid scheme” and will be required at retrial.
They have also asked that the costs of this application be paid to them by Mr Royds or the registry.
It is necessary to give a short précis of the history of this matter. On the 7th of December 1999 in District Court number 153 of 1997 a trial was concluded by a directed verdict and certain orders were made. The plaintiffs appealed to the Court of Appeal which gave judgment on the 15th of August 2001. The order of the Court of Appeal in Appeal number 11540 of 1999 was:
1) “Appeal allowed with costs;
2) Set aside the verdict and judgment in favour of the defendant;
3) That there be a new trial of the action;
4) That the defendant pay the plaintiff's costs of the first trial”.
On the 11th of September 2001 it would appear from the material before me the plaintiffs signed a notice of party acting in person, which indicated that there then solicitors Thompson & Royds no longer acted for them and that they were acting for themselves. The plaintiffs then brought an application on the 14th of November 2001, an originating application, in the Supreme Court number 119 of 2001 before Justice Jones. He ordered:
- 1)“That the amount of the offer made by the Cairns Port Authority to settle trial costs, namely the sum of $44,727.00 be paid into Court in the separate account in respect of this matter, namely 119 of 2001.
- 2)The taxation of the trial costs be adjourned to a date to be fixed;
- 3)Payment by Cairns Port Authority of the costs of appeal, namely $5,151.53 and the receipt of Mr and Mrs Merrin for that payment will discharge Cairns Port Authority in respect of that set of costs”.
I should note that it appears to be accepted by everybody that that sum of $44,727.00 had been offered by Cairns Port Authority to the plaintiffs to settle their costs of the first trial, that is, under paragraph 4 of the Court of Appeal order of 15 May 2001.
The plaintiffs, who are the applicants in the originating application in the Supreme Court number 119 of 2001 appealed that decision. However, meanwhile the Senior Deputy Registrar assessment of the Supreme Court had on the 10th of March 2002 undertaken a taxation assessment and certified the amount to the Court of Appeal.
On the 9th of August 2002 in Appeal number 11540 of 1999 the Court of Appeal did order that:
- 1)“Declare that the action referred to the order of this Court made on 15 May 2001, being action number 153 of 1997 in the District Court of Cairns, has not been concluded;
- 2)That the respondent firm of Thompson & Royds submit the bill of costs statement referred to in their letter of 28 August 2001 to the applicants; the Senior Deputy 1 Registrar's assessment of the Supreme Court sitting in Brisbane for taxation or assessment and for certification to this Court of the amount properly claimable by that respondent under that bill or statement of their costs as solicitors for the applicants in the first trial of that action.
- 3)That the applicants pay the costs of and incidental to this application of the respondent Cairns Port Authority.
- 4)That save as in (3) the applicant's costs of and incidental to this application be paid by the respondent firm Thompson & Royds.
- 5)The Registrar of the Court of Appeal is directed to provide a copy of these reasons to Legal Aid (Queensland)”.
This was followed by a further consideration by the Court of Appeal orders being made on the 2nd of May 2003 in Appeal Number 11540 of 1999 and DC Number 153 of 1997. The citation for these orders and the reasons given on that date is [2003] QCA 176. The Court of Appeal decided then that the Cairns Port Authority was allowed to set off its costs of the appeal dismissed on the 9th August 2002 and noted that Legal Aid (Queensland) made no claim to any interest in the moneys held in Court.
It noted that because there was no claim to an interest in the funds in Court having been made by anyone else, the only question remaining was how much of the money paid into Court by the Cairns Port Authority was payable to the solicitors in satisfaction of the lien or equitable interest claimed by those solicitors for their professional costs.
It was also noted that the payment of the balance of that money to the Merrins was then subject to the further order obtained by Cairns Port Authority on 9 August 2002, for payment of the costs of the unsuccessful appeal against the order for payment into Court of the sum of $44,727.
The Court set out proposed orders and then on the 4th of July 2003, the Court of Appeal in a matter also headed as Appeal Number 11540 of 1999, and DC Number 153 of 1997, the citation for which is [2003] QCA 272, adopted the assessment of the Senior Deputy Registrar assessments and ordered that the money paid into Court be disposed of as set out in paragraph 13 of the judgment.
Now, it appears from the documents before me that the moneys paid into Court incurred interest between the 15th of November 2001 and the 14th of July 2003 when the first payment out was made. The amount of interest on that sum of $44,727 was $2,688.28.
Certain payments were made by the Registrar, leaving a balance of $11,401.42 which also included other interest which had accrued, and that this was paid out to Thompson and Royds, Solicitors, on the 17th of October 2003 at their request. It would seem that the request was supported by a letter from the solicitors who are then called William Royds, Lawyers, dated the 12th of April 2005, enclosing an unsworn affidavit of Mr and Mrs Merrin and a notice of party acting in person, and it would seem, a copy of the judgment of the Court of Appeal of 2nd May 2003, and so on.
I am told that Mr Royds was served. There does not appear to be any evidence to that effect. However, I do not consider that I have jurisdiction to make the orders sought. Under the Court Funds Act 1973, power given to a Court or a Judge in respect of such funds, begins with a definition of “Court” in section 4. That is, that “Court” means, “The Supreme Court or a District Court or Magistrates Court, into which an amount that is money in Court is paid.” The money was paid into the Supreme Court as is clearly demonstrated by the orders made on the occasions to which I have earlier referred.
Secondly, “money in Court” is defined to mean “Any sum of money paid into the Court or placed to the credit of any cause, matter or account in the Court and includes dividends on securities in Court and interest on money lodged in the Court and invested under any Act or rules of the Court.”
“Order” is defined to mean - order of a Court, includes a judgment of the Court, a Supreme Court or a District Court Judge or a Magistrate and a report certificate or a direction of the Court, a Supreme Court or a District Court Judge, a Magistrate or an officer of the Court prescribed under a regulation. “Registrar” is also defined under section 4 and is clearly defined in respect of each of the Supreme, District or Magistrates Courts respectively.
Now, under the Court Funds Regulation, regulation 8 provides, “Unless the Uniform Civil Procedure Rules provide otherwise, money or securities in Court may only be paid, delivered or transferred out of Court or be invested or sold under an order of the Court” - under an order of the Court. The Uniform Civil Procedure Rules relevantly provide under rule 56:
- (1)“An application for payment of Court of money paid into or deposited in Court in a proceeding must be served on all other parties;
- (2)A person who applies for payment out of Court of money paid into or deposited in Court in a proceeding must state whether the person is aware of a right or a claim made by another person to all or part of the money;
- (3)Unless these rules provide otherwise, the money paid into or deposited in Court must be dealt with under the Court Funds Act, 1973.”
Accordingly, I have no jurisdiction to make the order sought as the moneys are in the Supreme Court.
...
HER HONOUR: So there we are. Application dismissed. No order as to costs.
...
HER HONOUR: I direct the Registrar provide the plaintiff's with a copy of the letter to the Registrar from Messrs Thompson and Royds, dated 25 September 2003 and filed in the Supreme Court or received in the Supreme Court in Cairns on the 29th of September 2003 as well as letters to the Registrar dated 12 April 2005 from William Royds Lawyers and copies of documents to which Mr Royds referred including a copy of the notice of party acting in person filed by Mr and Mrs Merrin on the 12th of September 2001, together with the documents described as the unsworn, undated affidavit of Mr and Mrs Merrin to which the Registrar advised that Mr Royds of Messrs Thompson and Royds had referred.