Allen v Grangrove Pty Ltd [1993] QSC 109 [1993] 2 Qd R 589

Se.- q3/t09 tit State Reporting Bureau TRANSCRIPT OF PROCEEDINGS {Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) CIVIL JURISDICTION MACKENZIE J Writ No 4775 of 1987 TREVOR PETER ALLEN Plaintiff and GRANGROVE PTY LTD Defendant BRISBANE .. DATE 1 6/04/93 JUDGMENT 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 9 -- 160493 at (Mackenzie J) HIS HONOUR: The conclusion I have reached in this matter is that a certificate should be issued, such certificate should include the damages, interest and costs, including reserved costs, and the amount of costs ordered to be paid by the applicant to Westpac and subsequently ordered to be recoverable by the applicant to the defendant. The costs of execution and of obtaining the Governor's warrant are not recoverable and should not be included in the certificate, as I have indicated. There will be no order as to costs in view of the findings that I have made. I publish my reasons. JUDGMENT 2 10 20 30 40 50 60 -- 2 of 9 -- IN THE SUPREME COURT OF QUEENSLAND Writ No. 4775 of 1987 Brisbane Before Mr. Justice Mackenzie [Allen v. Grangrove] BETWEEN: TREVOR PETER ALLEN - and - GRANGROVE PTY. LTD. REASONS FOR JUDGMENT -MACKENZIE J. Judgment delivered 16/04/93. Counsel: Solicitors: J. Miles for applicant B. Clarke for respondent Macnish & Thomson for applicant Plaintiff Defendant K.M. O'Shea, Crown Solicitor for respondents Hearing Date: 8 April 1993 -- 3 of 9 -- IN THE SUPREME COURT OF QUEENSLAND Writ No. 4775 of 1987 BETWEEN: TREVOR PETER ALLEN Plaintiff AND: GRANGROVE PTY. LTD. Defendant REASONS FOR JUDGMENT -MACKENZIE J. Delivered the Sixteenth day of April, 1993 This is an application for a certificate under s.127 of the Real Property Act 1861 in consequence of a "nulla bona" return to a writ of fieri facias. Section 126 provides that any person deprived of any land in consequence of fraud may prosecute an action in the Supreme Court for the recovery of damages against the person who derived benefit by such fraud. Section 127, so far as is relevant for present purposes provides that in any case in which damages may be awarded in an action against a person deriving a benefit by fraud and the Sheriff shall make a return of nulla bona, the Treasurer upon receipt of a certificate of a Judge of the Supreme Court and of a warrant under the hand of the Governor shall pay the amount of such damages and costs and charge the same to the account of the assurance fund. The assurance fund is set up under ss.41 and 42. The facts are that judgment was entered for the plaintiff for $15,000 damages for fraud, interest of $3,580.27, costs of -- 4 of 9 -- 2 the action and certain reserved costs. In addition, costs ordered to be paid by the plaintiff to Westpac Banking Corporation were ordered to be paid by the defendant to the plaintiff. These costs arose from one facet of the proceedings in which an order was unsuccessfully sought against Westpac that an entry on the register relating to a bill of mortgage given by the fraudulent transferee in favour of Westpac be cancelled and that Westpac as mortgagee be restrained from dealing with the land. Ultimately the plaintiff was only successful in recovering damages for fraud against the plaintiff. He failed in his attempt to have orders made restoring him to his pre-fraud position on the register. The recoverability of these costs from the assurance fund is disputed. The recoverabili ty of costs of execution and of the Governor's warrant is also in dispute. It is not disputed that the amount of the judgment and the award of costs other than the Westpac costs should be certified. Under s.127 the consequences of a return of "nulla bona" of a writ of fieri facias are that the amount of damages and costs awarded are recoverable from the assurance fund. Nothing in that section suggests any reason to analyse the basis of the costs awarded. The phrase used is "costs awarded" which requires on the face of it no more than to have regard to the order made in the action. It should be assumed that the order that was made which has the effect of allowing the plaintiff to recover from the defendant the costs of his .proceedings against Westpac was made on the basis that those costs were necessarily incurred in I ' -- 5 of 9 -- 3 establishing the plaintiff's claim to damages (see Cox v. Bourne (No. 2) (1897) 8 Q.L.J. 66, 69). On the face of the order, Westpac's costs ordered to be paid·in the first instance by the plaintiff were costs reimbursed to him as part of the order for costs against the defendant and therefore should be included in the certificate. So far as the costs of execution are concerned such costs are not costs of the action (Marquis of Salisbury v. Ray (1860) 8 C.B.N.S. 193; Armitage v. Jessop (1866) L.R. 2 C.P. 12). If a Sheriff is unable to levy the execution fees from the execution debtor he has a right of action for them against the execution creditor (Montague v. Davies, Benachi & Co. (1911) 2 K.B. 595, 605, 606; The Ile De Ceylan (1922) P.256). These factors tend against characterising the costs of execution as "costs" within the meaning of s.127. The structure of s.127 is also against the proposition. The action for damages against the Registrar is "for the purposes of recovering the amount of ........... damages and costs against the assurance fund". Then s. 127 provides that in any case in which damages are awarded and the Sheriff makes a return of nulla bona or certifies that the full amount ( scil., of damages) with costs awarded cannot be recovered from the fraudulent person the amount of such damages and costs are to be paid from the assurance fund. The proper construction is that s.127 does not permit recovery of expenses that are neither damages nor costs awarded in the action. The same reasoning applies to any costs associated with the petition for the Governor's warrant, which are also in dispute. -- 6 of 9 -- 4 It was then submitted that the costs of execution and of obtaining the Governor's warrant were recoverable under the power in s.134 which is as follows:- "Registrar-General or Court to award costs and expenses. In every proceeding under this Act relating to any summons examination or warrant it shall be lawful for the Registrar-General Court or Judge to give to or withhold from any of the persons who may attend any such proceeding his reasonable costs and expenses and to direct by whom such costs and expenses are to be borne and paid." Mr. Clarke for the respondents submitted that s. 134 was concerned only with proceedings under ss.130-133. Mr. Miles submitted that the generality of the opening words was sufficient to empower the court to award the costs in question to the applicant. Firstly, although the word "proceeding" is usually broad in scope it is qualified in s. 134 by the words "relating to any summons, examination or warrant". Sections 130 to 133 are concerned with steps that can be taken with a view to the Registrar holding an examination of a person who has fraudulently or wrongfully obtained a certificate of title or entry on the register. He has power to summon a person and if necessary to have a Judge of the Supreme Court issue a warrant to compel the person to appear for examination. These steps are echoed in the words of s.134. Secondly, ss.126-129 may be contrasted with ss.130-133 in that is what is referred to in the former is an "action". In the latter the words summon, examination and warrant which are reflected in s.134 are used. Had s.134 been intended to apply to an action and consequential steps thereto one would have expected the drafting of s.134 to reflect that. -- 7 of 9 -- 5 Thirdly, s.134 does not apparently contemplate that the costs there referred to can be charged against the fund. In my opinion, s.134 does not authorise a Judge to order that the costs of execution and of obtaining the warrant of the Governor be borne by the fund. It was also submitted that because the present proceedings were instituted by summons, that provided a basis upon which an order for costs of the proceedings to obtain the certificate could be made. I do not accept that argument for the same reasons expressed above. Finally, it was submitted that the general power to award costs in 0.91 r.1 of the Rules of the Supreme Court authorised an award of costs of the proceedings and that such costs could be charged to the assurance fund. In view of the outcome on the issues argued it is not necessary to decide this question because even assuming such power to exist the appropriate order is that there be no order as to costs. However, if the Registrar and the Treasurer were to appear to defend a particular position in a particular case and were to be wholly unsuccessful they would be amenable to an order for costs against them. Section 127 is concerned with damages and costs of the original action only and authorises only those sums to be charged to the assurance fund. The Registrar's and the Treasurer's right of recourse to the fund in respect of an award of costs made against them in proceedings to obtain the certificate will depend on consideration whether s.137 or s.42 enables such costs to be charged to the fund. However it is -- 8 of 9 -- 6 unnecessary to explore the limits of these provisions in the present case. It is therefore my conclusion that a certificate should issue. Such certificate should include the damages, interest and costs, including reserved costs and the amount of costs ordered to be paid by the applicant to Westpac and subsequently ordered to be recoverable by the applicant from the defendant. The costs of execution and of obtaining the Governor's warrant are not recoverable and should not be included in the certificate. As I have indicated previously there will be no order as to costs of these proceedings. -- 9 of 9 --