Topic 10: Trial, Costs, and Enforcement

Question 1

Topic 10: Trial, Costs, and Enforcement

Answer 1

Topic 10: Trial, Costs, and Enforcement

Question 2

Security for costs

Answer 2

Where the Pft sues the Dft, and the Dft spends money to defend and wins but the pft has no money to pay the Dft, the Pft will have to put into court money as security to costs.

This is because there needs to balance the right of the Pft to sue for a good cause, as well as the Dft’s interest if they succeed.

Question 3

Prerequisite for security for costs

Answer 3

The court may order the Pft to give security to costs only if they are satisfied that:

• The pft is a corporation and will be unable to pay the dft’s costs (IMPORTANT)
• The pft is suing for the benefit of another person
• the address of the pft is not stated or misstated
• the pft has changed address
• the pft is ordinarily resident outside of Australia
• the pft is or is about to depart from Australia to become a resident outside of the Australia
• an act authorises the making of the order
• Justice of the case requires the making of the order.

Question 4

Discretionary factors for security to costs

Answer 4

The onus is on the pft to prove matters and the more you have the more successful you may be. Includes:

• means of those standing (finances)
• prospects of success or merits of the proceeding
• genuineness of the proceeding
• impecuniosity of a corporation

and many more.

They will consider whether if the pft has no money as a result of the action of the Dft.

Question 5

Way security is given

Answer 5

The way security to costs is given is through the form, time and condition the court directs.

Question 6

Stay or dismissal for security of costs

Answer 6

A matter may be stated until the money has been paid. A stay is when time stops running and if they don’t make payment, the dft can make an application to dismiss.

Question 7

Counterclaims

Answer 7

Counterclaims are not included in security of costs as it is a separate claim. It’s only in respect to money you will spend in response to the pfts claim.

Question 8

Trial

Answer 8

Trial is only applicable to claims.

Before you request for trial date:

• Take note of any applications that have outstanding cost orders.
• Ensure full disclosure has been made.
• Obtain council/barrister.
• advice on evidence (get this earlier)
• update your client on the risks of the costs etc.
• Check witness availability and go over evidence with them. You can Sepena them.

Question 9

Request for trial date

Answer 9

A party who is ready for trial must prepare and sign a request for trial date, must serve copies of it and the party who receives it needs to sign it and return it back to the party who prepared it.

A party who prepared the request must file as soon as practicable to each party and then to the court.

Question 10

Request for trial date: you are ready for trial where:

Answer 10

You are ready for trial where:

• You have complied with disclosure
• an order requiring particulars is complied with
• any interrogatories is delivered
• all necessary steps to a proceeding are complete
• all necessary witnesses are available for trial
• the proceeding is ready for trial
• claims for damages for personal injury are complied with.

Once happy with these things, you can sign it and send it off. The receiver does not have to sign it back of they are not ready but they have to give reason.

Question 11

Dispensing with signature or request for trial date

Answer 11

Where you have signed and served a request for trial date and the other party has not responded within 21 days, you can apply to the court to have their signature dispensed with and have the matter set down.

If you get it, then write a letter back with reasons for not signing it or the above will occur.

Question 12

Leave required for steps after request for trial date

Answer 12

After the filing the request for trial date, a party may do the following only with the court’s leave:

• amend a pleading
• request particulars
• make an application in a proceeding

Question 13

Setting trial date

Answer 13

Once both parties have signed the request and sent it to court, you need to set a trial date.

The date may be set at a call-over or by judge or magistrate or by registrar

Question 14

Setting trial date: Call-over

Answer 14

A call over is when you go to court to get the trial date where the judge sits with their associate and have an allocated time to set down dates for hearings.

The judge calls over each case and the party’s representatives speak to the judge to get an allocated date. It is not in order of seniority, it is about the date in which you filed a request for trial date.

The things you tell the judge is whether or not you have someone briefed e.g. barrister, how long you think it may take, any special circumstances or any threshold points to be heard prior to proceedings.

Unavailable Barrister is not a special circumstance, because another barrister can do the job. Witness availability is more important than representation availability.

Magistrates court does not have call overs. Once a request for trial date is filed in the mags court, the court issues a notice for a directions conference/settlement conference.

Question 15

Settlement Conferences

Answer 15

A court may require a settlement conference usually sent to you after the request for trial date, but can also be sent after the defence. It will tell you about the conference and you must ensure the party who has authority to settle is in attendance.

Failure to attend by the Dft can result in the registrar giving judgement for the pft. If the Pft fails to attend, the registrar can stay or dismiss it.

Question 16

Mode of Trial: Jury

Answer 16

Unless a trial by jury is excluded by an act, a Pft in Statement of Claim or Dft in defence may elect a trial by jury.

Question 17

Court of Trial: Default of attendance

Answer 17

If the Dft does not appear, the Pft still has to prove their case.

If the Pft does not appear, they can dismiss on application.

Question 18

Costs

Answer 18

There are two types of costs at trial:

• Standard costs/Party party costs
• Indemnity costs/Solicitor & own client

Question 19

Cost orders for Applications

Answer 19

Sometimes the cost orders of the applications will be linked to the outcome of the trial.

Question 20

Cost orders for applications: Costs in any event

Answer 20

Party gets their costs of the application regardless of the result of trial.

Question 21

Cost orders for applications: Costs in the cause

Answer 21

Costs will follow the action. The losing party at trial will pay the cost of the application in addition to the cost of the trial.

Question 22

Cost orders for applications: Costs in the party’s cause

Answer 22

The party if they win the trial and have the cost ordered in their favor, will also get the cost of the application.

Losing party at trial will pay the cost of application in addition to the costs of trial.

This is only for one party, being the winning party.

Question 23

Other orders: Order silent as to costs

Answer 23

The party successful in application can apply for cost as ‘cost in cause’ but the losing party cannot.

Question 24

Other orders: No order as to costs

Answer 24

Each party pay their own costs.

Happens a lot in settlements.

Question 25

Other orders: Costs of proceedings

Answer 25

All costs including trial and interlocutory costs, but does not include cost of an application in the proceeding.

The cost of proceeding is everything in our timeline including the trial, but it does not include interlocutory applications. Take out applications.

Question 26

Other orders: Cost of trial

Answer 26

Just the bit at the end, no interlocutory costs.

Question 27

Other orders: Costs reserved

Answer 27

Decided at the end of trial following the event unless court orders otherwise.

Costs are often reserved.

Question 28

Other orders: Costs follow the event

Answer 28

Whoever wins gets their costs paid by the other party

Very common

Question 29

Other orders: Costs thrown away

Answer 29

Wasted costs for an application that did not proceed is payable by the person who had done them.

Question 30

Other orders: Bullock Order (important)

Answer 30

Where there is more than one Dft, the unsuccessful Dft is ordered to pay the cost of the Pft and the successful Dft’s.

Question 31

Other orders: Sanderson Order

Answer 31

Where multiple Dft’s won and lost.

The Pft is ordered to pay the cost of the successful dft’s. The unsuccessful Dft or Dfts are then ordered to pay the costs of the Pft, including the Pft’s costs to the successful Dft’s.

Question 32

Other orders: Costs ‘of and incidental to’

Answer 32

Always want to seek costs of and incidental to

It’s not just on the application, there is a whole heap of costs relating.

Question 33

Assessment of Costs

Answer 33

The successful party prepares and serves a cost statement, being a list of all items they are claiming for.

It is not only on hourly work or on a scale, it will also be for the outlays (filing fees, photocopying, searches, bills paid to barristers, postage cost, stamp carriers).

The other side has 21 days after service to file a notice of objection.

If they cant agree on costs, you appoint an assessor.

Remember offer strategies for costs.

Question 34

Standard basis of assessment

Answer 34

Cost assessor must assess costs on the standard basis, allowing all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed.

Considerably less costs here.

Question 35

Indemnity basis

Answer 35

Court may order costs to be assessed on an indemnity basis, meaning all costs.

Question 36

Enforcement

Answer 36

You want to secure information about assets, income, liability and expenses. With that knowledge, you can then craft the best way to try enforce the judgement debt you have in monies for your client.

Options include:

• Get info
• Seizure and sale (assets)
• redirect earnings (income)
• Bankruptcy order for an individual
• Company winding up

Question 37

Amount recoverable from enforcement

Answer 37

The cost of enforcement and interest on the order is recoverable.

Question 38

Enforcement period

Answer 38

6 years limit and after 6 years you need to prove reason.

Question 39

Enforcement Hearing: Purpose

Answer 39

The purpose of enforcement hearing is to obtain information to facilitate the enforcement of a money order.

It is information only and you can ask them to bring along evidence e.g. pay slips, mortgage documentation.

Question 40

Enforcement Hearing: Statement of financial position

Answer 40

The statement of financial position is the statement the party who owes money is required to complete and gave back stipulating their financial position.

Question 41

Enforcement Hearing: After money order is made

Answer 41

An enforcement creditor may apply to the court for an enforcement hearing. The application may only be made after:

• A money order is made; and
• the enforcement creditor has required a statement of financial position to be completed and returned by enforcement debtor; and
• Either, it was returned to them or the time has expired.

Question 42

Enforcement Hearing Summons

Answer 42

In order to get an enforcement hearing, you issue an enforcement hearing summons.

A person to whom an enforcement hearing summons is directed must attend court before issuing the summons to:

• give information and answer questions
• produce documents stated in the summons.

Where the enforcement creditor is satisfied, they may give written notice to the court that the person is no longer required to attend the enforcement hearing.

Question 43

Orders at enforcement hearing

Answer 43

Where you don’t show under summons to attend, the court may:

• issues a warrant for your arrest to bring them to court.
• make another order
• stay the enforcement of the order
• award costs

Question 44

Failure or refusal in relation to statement of financial position or enforcement hearing

Answer 44

If the party requested to file a statement of position and fail to do so: the court may treat it as a contempt of court.

Question 45

Seizure of property under enforcement warrant

Answer 45

Where in the statement of financial position it claims they have expensive things, it is up for grabs. However, there are exemptions.

Question 46

Enforcement warrants for redirection of earnings (garnishee order)

Answer 46

A court may issue an enforcement warrant authorising redirection to an enforcement creditor of particular earnings of an enforcement debtor from a third person.

Redirecting earnings continue until the total amount is satisfied or the warrant is set aside or expires.

Court needs to be sure that the Dft still has enough to live. You cannot just take everything, you need to leave them with enough for living expenses, employment and other liabilities.

Question 47

Sequestration Order (Bankrupcty) - Individual

Answer 47

About making sure where the entity says they don’t have much that you have gotten all you can get.

Jurisdiction to make a sequestration order requires the debtor to have committed an act of bankruptcy, and one way of doing that is by non-compliance with a bankruptcy notice.

The official receiver may issue a bankruptcy notice (ONLY WITH JUDGEMENT) on the application of a creditor who has final judgement against the debtor for at least 5k. If they don’t comply within 21 days, it is deemed to be an act of bankruptcy.

NEED 5K DEBT. 
FEE TO FILE. 
21 DAYS 
NON-PAYMENT = ACT OF BANKRUPTCY 
ISSUE CREDITORS PETITION FILED IN THE COURT
SEQUESTRATION ORDER = BANKRUPT PERSON 
TRUSTEE APPOINTED AND ALL VESTS IN THEM 
ACTING IN RESPECT TO ALL CREDITORS

Question 48

Winding up - Company

Answer 48

Occurs only if the entity that owes money is a company.

Issue a creditors statutory demand (WITH OR WITHOUT JUDGEMENT) on the company where there is no longer a dispute but they have not paid money. Must provide an affidavit for that.

Creditor may serve a statutory demand on the company that they have 21 days to make payment (only for 2k or more owed). If the company does not agree, they can make application to the court to have them wound up on insolvency.

You only use the court process where there is a dispute. Here, it is where they have not made payment.

2k is raised to 20k now due to covid.

NEED 2K DEBT. 
NO FEE TO ISSUE STATUTORY DEMAND.
21 DAYS 
NO PAYMENT = PRESUMPTION OF INSOLVENCY 
APPLICATION TO WIND UP THE COMPANY 
WINDING UP ORDER = IN LIQUIDATION. 
LIQUIDATOR APPOINTED AND EVERYTHING VESTS IN THEM 
ACTING IN RESPECT TO EVERY CREDITOR