Wentworth v Rogers [2003] NSWSC 474

Wentworth v Rogers [2003] NSWSC 474

Although Ms Wentworth established a prima facie right to execute for judgment debts exceeding Mr Rogers' presently enforceable costs entitlements, the stay should not be removed because the Te Mata property interest was Mr Rogers' half share subject to substantial mortgages, there was no evidence of its sale value or that a purchaser could be found, and money held in court from related proceedings provided an identifiable possible source for satisfaction of the debts. The application to remove the stay was therefore dismissed, with the stay to continue until further order and liberty to apply after a decision on the money paid into court in proceedings No 11094 of 1995.

Jurisdiction
Australia
Judgment Date
16 June 2003
Procedural Posture
Application to Set Aside or Remove a Stay of Execution of Writs for Levy of Property to Enforce Judgments for Costs / Application Following an Ex Parte Stay Order Made by Shaw J on 7 April 2003
Outcome
Application for removal of the stay dismissed, save that the stay be enforceable until further order of the Court.
Legal Topics
['stay of Execution' 'writ for Levy of Property' 'set Off or Competing Judgment Debts' "sheriff's Seizure of Property" 'practising Certificates and Right of Audience' 'appearance by Solicitor for Party Otherwise Acting in Person']
['civil Procedure' 'execution of Judgments' 'costs' 'legal Profession'] ['stay of Execution' 'writ for Levy of Property' 'set Off or Competing Judgment Debts' "sheriff's Seizure of Property" 'practising Certificates and Right of Audience' 'appearance by Solicitor for Party Otherwise Acting in Person']

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Procedural Posture

Application to Set Aside or Remove a Stay of Execution of Writs for Levy of Property to Enforce Judgments for Costs / Application Following an Ex Parte Stay Order Made by Shaw J on 7 April 2003

Legal Issues

  1. 1 ['Whether the stay of execution of two writs for levy of property should be removed.' 'Whether competing costs certificates and other claims between the parties justified continuation of the stay.' "Whether the respondent's interest in the Te Mata property was a practical subject of execution given mortgages and uncertainty of saleable value." "Whether money paid into court in related proceedings provided an alternative source for satisfaction of the applicant's judgment debts." 'Whether Mr Beazley could appear for the respondent when the respondent had not appointed a solicitor on the record and Mr Beazley held a practising certificate as a solicitor and barrister rather than as a barrister.']

Ratio Decidendi

Although Ms Wentworth established a prima facie right to execute for judgment debts exceeding Mr Rogers' presently enforceable costs entitlements, the stay should not be removed because the Te Mata property interest was Mr Rogers' half share subject to substantial mortgages, there was no evidence of its sale value or that a purchaser could be found, and money held in court from related proceedings provided an identifiable possible source for satisfaction of the debts. The application to remove the stay was therefore dismissed, with the stay to continue until further order and liberty to apply after a decision on the money paid into court in proceedings No 11094 of 1995.

Court Disposition

Application for removal of the stay dismissed, save that the stay be enforceable until further order of the Court.

Orders

  • ['The application for removal of the stay is dismissed, save that the stay be enforceable until further order of the Court.' 'Liberty to both parties to apply following the decision of the Court as to the disposal of monies paid into court in proceedings No 11094 of 1995.']