Benson v Nominal Defendant (Qld) [1991] QSC 172

IN THE SUPREME COURT OF QUEENSLAND ROCKHAMPTON BETWEEN: No. 145 of 1979. ERNEST JAMES CHARLES BENSON AND: THE NOMINAL DEFENDANT JUDGMENT - DEMACK J. DELIVERED the 20th day of June 1991 . CATCHWORDS: Application by Registrar concerning monies to the credit of the action - Payment into court 1984 - Accident in 1977 - no file activity since November 1987 - Plaintiff accepts sum in full discharge of claim - No good reasons shown by Defendant to allow his to resile from steps taken in 1984. Court Funds Regulation, reg 33(3) (6) & (4). COUNSEL: Mr D. MCMEEKIN for Applicant/Plaintiff Mr. A. MELLICK for Respondent/Defendant SOLICITORS: JOHN MURPHY & CO for Applicant/Plaintiff GRANT & SIMPSON for Respondent/Defendant T/Ags for O'SHEA CORSER & WADLEY HEARING DATES: 27th May, 1991. -- 1 of 6 -- IN THE SUPREME COURT OF QUEENSLAND ROCKHAMPTON BETWEEN: AND: No. 145 of 1979. ERNEST JAMES CHARLES BENSON Plaintiff THE NOMINAL DEFENDANT (QUEENSLAND) Defendant JUDGMENT - DEMACK J. DELIVERED the 20th day of June 1991. This action was commenced by a writ issued on 12th November 1979. On 13th April 1991 the Registrar published an advertisement in the Government Gazette in accordance with the provisions of reg. 33(3) (b) of the Court Funds Regulations, together with. a notice in accordance with reg. 33 ( 4) . That notice required the parties to apply to the court before 27th May 1991 in respect of the sum of over $63,000 standing to the credit of the action. On 21 st May 1991 both the plaintiff and the defendant filed applications for leave to proceed and for orders for the payment out of the money to the respective applicants. There has been little activity on the file since 1979, and none since 19th November 1987. However, on 13th July 1988, the plaintiff's solicitors wrote to the defendant's solicitors enclosing documents relating to the proof of the -- 2 of 6 -- 2 plaintiff's claim. There are two distinct issues raised in these applications. The first is the order to be made in respect of the money, the second is the fate of the action. The plaintiff wants to accept the money in court in full satisfaction of his claim. The defendant wants the money paid out to it, but this is really upon the basis that things have so changed since February 1984 when the money was paid in, that it should be allowed to withdraw its payment into court. The next step then would be either an application to dismiss for want of prosecution, or the action would proceed to trial. It seems to me that these two distinct issues raise quite different considerations under 0.90, r. 9. The plaintiff is responding to the terms of the notice published by the Registrar, and coming to the Court under the provisions of reg. 33(9) which reads:- "If before the expiration of the time mentioned in thenotice referred to in subregulation (4), a claim is made to any moneys or securities standing to the credit of an account mentioned in the list, the claim shall be heard and determined by a Judge of the Court who may order that any such securities be sold and the net proceeds thereof together with any other moneys standing to the credit of the account be transferred to the Consolidated Revenue Fund, or may make such other Order as to the disposal of any such moneys or securities as the Judge deems fit." As I have said, the plaintiff's application is made before the expiration of the time mentioned in the Registrar's notice. The plaintiff's application for payment of the moneys to him can only mean that the money is accepted in full discharge of the plaintiff's claim. While this brings the action to an end, and is thus a step in the action, it is essentially a response to a specific step which is initiated -- 3 of 6 -- by the Registrar under 3 the Court Funds Regulations. Consequently, I do not think leave to make this application is needed, but if it is, I would grant the plaintiff that leave. However, if the defendant's application succeeds the action remains on foot, so that the defendant's application is very much a fresh proceeding, although it has the same origin. It seems to me that this is a relevant consideration upon the defendant's application to have the money paid to it. In Cumper v. Pothecary (1941) 2K.B. 58, Goddard L.J. said at p. 70:- "-- we think it is desirable to say that it must not be thought that a defendant who has paid a sum into court is entitled, as of right, to resile from that step. He must, in our opinion, show that there are good reasons for his application - for instance, the discovery of further evidence, which puts a wholly different complexion on the case, as in the two cases cited, or a change in the legal outlook brought about by a new judicial decision, as in the present case, and there may be others. Having once put a valuation on the plaintiff's case, the defendant ought not to be allowed to alter it without good reason. We think the same considerations apply if the matter comes before the court on an application by the plaintiff to have the money paid out to him. The court is not to consider merely whether the amount paid in is large or small, nor is it called on to take into account the sort of circumstances which would be proper, if for instance, it were asked to approve a settlement on behalf of an infant. Apart from matters such as fraud or mistake affecting the original payment, it should consider whether there is a sufficient change of circumstances since the money was paid in to make it just that the defendant should have an opportunity of withdrawing or reducing his payment." I have also referred to Peal Furniture Co. Ltd v. Adrian Share (Interiors) Ltd (1977) 2 All E.R. 211, and W.A. Sherratt Ltd v. John Bromley (Church Stretton) Ltd (1985) 1 All E.R. 216. Here the defendant cannot point to any fresh evidence that puts a wholly different complexion on the case. It was argued that the recent decision of the High Court in MBP (SA) -- 4 of 6 -- 4 Pty Ltd v. Gogic (1991) 98 A.L.R. 193 introduced new considerations about the proper rate of interest, overruling Cullen v. Trappell (1980) 146 C.L.R. 1. I am not satisfied that that would call for any significant change in the assessment of the plaintiff's claim. The accident on which the plaintiff sued occurred in 1977, the payment into court occurred in 1984 and these applications are made in May 1991. If the matter went to trial now it seems unlikely that any change in interest rate would reduce the amount the plaintiff recovered. It seems to me that here the first consideration is to bring this litigation to an end. In 1984 the defendant's advisers assessed the plaintiff's claim at $37,100. The plaintiff now wants to accept that sum, with accretions, in full discharge of his claim. There does not seem to me to be any reason why the defendant should be allowed to resile from the step taken in 1984. The Registrar's summons is dismissed. On the plaintiff's summons I order that the money paid into Court together with accretions be paid to the solicitors for the plaintiff, after the Registrar's costs of advertising have been deducted, and that this payment be in full satisfaction of the plaintiff's claim. I further order that the defendant pay the plaintiff's costs of the application to be taxed. I order that the defendant's summons be dismissed. I further order that the defendant pay the plaintiff's costs of the action up to 17 February 1984 and that thereafter -- 5 of 6 -- 5 the plaintiff pay the defendant's costs of the action other than those otherwise dealt with by this order. -- 6 of 6 --