welcome to laws 1307 civil procedure this is topic 12 and our last topic and it's on costs and enforcement I'm Andrea Turner litigation is a game of Risk and reward the risk is that decisions may not go your way and even if you win there's no guarantee that you recover the value of your claim or the cost associated with the process through rewards May well and truly be illusory after studying topic 12 cost and enforcement you should be able to should be able to with respect to enforcement understand the general enforcement rules and apply the appropriate enforcement rules to different fact situations and with respect to costs understand the general cost Rule and discuss the various basis on which costs may be ordered or awarded rather the first issue to consider is when is a judgment enforceable once the judgment is authenticated or perfected in the registry it's normally enforceable immediately however some exceptions to the general rules exist firstly Equitable relief is not enforcable immediately Equitable relief generally requires notice and some period for compliance secondly you might have a conditional judgment a person entitled to a conditional judgment may not enforce that judgment until the condition is satisfied or the court dispenses with that condition see rule 796 courts also have an inherent jurisdiction to stay execution of a judgment it's not automatic the general power to stay is a discretionary decision made upon application you can see stays pending appeals stays of summary judgment staying of trial of counter claims stays of summary judgments relating to parts of a claim and a stay of execution where facts arise after the Judgment which suggests that perhaps a different outcome should have occurred stays are possibly uh stays are possible in quite a few situations but their discretionary decisions based on application they're not automatic so limitation periods the enforcements of judgments is subject to a limitation period of 12 years that's the maximum period you can see this in the limitation of actions act 1974 section 10 subsection 4 even prior to the expiry of the limitation period leave is required to issue a RIT or warrant to enforce a judgment if more than six years have elapsed since the Judgment was handed down there may also be situations where preemptive strikes by judgment creditors are necessary and we've seen some of these in earlier weeks of the unit the main preemptive strikes by judgment creditors are freezing orders and attachment let's look at each in turn a freezing order will be relevant if there is danger that a party will remove assets from the jurisdiction in order to frustrate execution CPR division 2 freezing orders rule 260 through to 260g which have been dealt with earlier in the unit a plaintiff fearful that a defendant May abscond the jurisdiction before enforcement of a judgment May apply for an attachment order under chapter 20 part 8 a typical example would be where somebody is fleeing the country with suitcase full of money the application requires proof by Affidavit of damage of the defendants being likely to leave the jurisdiction and of the need for the defendant's apprehension if the action is not to be defeated upon such proof being given the court May order the defendant's arrest and once arrested the person is to remain in custody until the court orders the person's release or the person gives gives adequate security the queens and rules also make provision for the making of an order restraining a person from leaving Australia see rule 259 subsection 2C one crucial aspect of enforcement is not to delay enforcement should be initiated as soon as possible because judgment datas are not always Cooperative often it's a case of gathering relevant information there are various legal ways in which judgment creditors May learn about the Judgment Deb's assets these include title offer searches share and shipping registry searches and searches of Motor Vehicle Registration records out of motor vehicle security registers such searches should be conducted sufficiently early for the plaintiffs to be able to be confident that the defendant will have sufficient resources to Warrant the expense of litigating to the point of a judgment there's no point litigating if you cannot recover the judgment and costs judgment creditors can obtain information to assist recovery through an enforcement hearing under ucpr rules 83 to 82 12 an enforcement hearing can Arise at any time after a money order is made or at the end of the trial of a proceeding that has resulted in a money order have a look at rule 804 at any time after a money order is made an enforcement creditor May by written notice require an enforcement data to complete and return to the enforcement creditor a statement of financial position of an enforcement data in the approved form 71 for an individual and form 72 for a company have a look at rule 807 in relation to those forms installment orders debts may be ordered to be paid by installments ucpr chapter 19 part 7 have a look at rules 863 and 870 it's just a way of payments being spread out over time rather than in one lump sum warrant of execution a warrant of execution is a direction to the sheriff to do certain things typically to seize and sell property there's a broad division between those relating to warrants for the enforcement of money orders and general rules relating to warrants for the enforcement of non-money orders it's important to seek enforcement in the court with an appropriate monetary limit and we look at Monetary limits way back at when we looked at jurisdiction have a look at rule 801 the most common type of enforcement procedure is an enforcement warrant under rule 817 types of orders ucpr rule 828 deals with the seizure of property under an enforcement warrant a court May issue an enforcement warrant authorizing an enforcement officer typically the sheriff to seize and sell in satisfaction of a money order all the real and personal property other than exempt property in which the enforcement deta has a legal or beneficial interest rule 829 deals with the order of selling properly property and in enforcement officer must seize and sell property in the order appearing to the enforcement officer to be the best for the prompt enforcement of the warrant without undue expense and in an order appearing to the enforcement officer to best to be best for minimizing hardship to the enforcement deta and other persons rule 832 deals with the nature of the sale which says basically that unless a court orders otherwise an enforcement officer must put up the sale by public auction all property liable to be sold under the enforcement warrant rule 797 provides that the account the amount recoverable from an enforcement can include the costs as well as interest on the order debt enforcement warrants can also be registered on title to property and that's discussed in the study guide recovery of land an enforcement warrant for Recovery of land deals with removing trespasses on land under 915 and form 85 and it's known as a warrant for possession detained Goods in relation to detained Goods a plaintiff May obtain a money order for their value an order for the delivery of the goods or their value or judgment for the delivery of goods themselves have a look at rules 897 in relation to the order and 9916 in relation to the warrant for delivery for delivery interest on judgments the civil proced edings act 2011 section 59 provides for interest which is set by practice Direction Number 7 of 2013 the rate of interest is subject to change as well as variance between different Court jurisdictions changes in the rate are notified via the court website as well as those maintained by the law so society and bar associations orders against third parties an enforcement warrant for redirection of debts is known at common law as a GU order the rules provide procedures whereby people who are indebted to the Judgment debtor that is the person who owes the Judgment debt may be ordered to pay the amount owing to the Judgment creditor that is the person entitled to the Judgment debt these procedures are set out in rules 839 through to 857 a precondition for the attachment of debts is the existence of a judgment for a specific sum of money credit balances in Bank in bank accounts have generally been treated as simple debts owed by the bank to the customer which can be redirected under a garish she order savings accounts on the other hand have been treated as involving contracts whereby withdrawals may be permitted only if certain conditions are satisfied such as a presentation of a passbook or passbook account these savings accounts cannot be redirected under a gesi order or enforcement warrant for the redirection of debts the first step is for the Judgment creditor to apply xart for an for an order niai to serve notice on the third party gesi who owes the debt to the Judgment creditor the third party can object to the order have a look at rule 400 uh sorry 840 an affidavit evidencing the debt is needed the second step is personal service on the third party and the Judgment deta under rule 842 subsection 1 this freezes the debt in the hands of the third party pending the hearing of the summons or the outcome of any objection there is also an enforcement warrant for the redirection of earnings under ucpr rules 855 and 856 creditors or debtors May apply for an enforcement warrant for the redirection of earnings from a judgment debtor's Employers in deciding whether to issue such a warrant the court is to have regard to the debtor's employment status the employer the debtor's capacity to pay the impact of the order on the data and if the data seeks the order of whether its issue would be consistent with the efficient and expeditious enforcement of the order a successful applicant must serve the warrant on the deta and the data's employer under rule 859 subsection 1 an order May authorize payment by installment under rule 868 the prerequisites for an installment order are set out in rule 869 and installment orders may be discharged or varied under rule 8 71 charging orders and stop orders a charging order is made against a beneficial interest of a judgment data in any Securities that they may hold chapter 17 Parts 8 and N the first step is an expart application under rule 817 followed by service of the order which freezes the Securities have a look at the Supreme Court act 1995 section 39 subsection 1 the effect of charging order is that the Judgment creditor is treated as having a charge over the Securities the Creditor can enforce the charge by having the security sold and being paid from the proceeds after 3 months from the date of service of the order on the deta and the person administering the property under rule 876 receivers receivers have extensive powers to receive income from the property of a judgment deor rules 883 through to8 188 receivers receive income from the property of the Judgment data which can be applied to reducing the debts owed to the Judgment creditor receivers are expensive and really should be considered as a strategy of Last Resort due to their cost contempt and sequestration non-compliance May warrant a sanction for contempt to encourage compliance this may involve a fine imprisonment or separation from property which is known as sequestration if a judgment requires doing or not doing something then time for compliance is necessary and required according to rule 94 subsections 1 and 2 and personal service of the judgment is also required attachment and committal there is provision for issuing a warrant for a party's arrest prior to a hearing by leave of the court if there is danger that the respondent will abscond or leave the jurisdiction see rule 9 27 fines and incarceration are possible rule 930 which allows orders under the penalties and sentences act 1992 Queensland enforcement of Interstate judgments this is done under the service and execution of process act 1992 sections 104 to 109 which provides a simple procedure for enforcing one state or territory the Judgment of a court of another state or territory enforce M of judgments outside of Australia it's necessary for you to have a look at the foreign judgments act 1991 Commonwealth foreign judgments are enforcable under this legislation on the basis of reciproc recipro reciprocity that is Australian courts enforce judgments which will enforce which will be enforced in similar terms by the relevant foreign courts the regulations have steadily increased the number of countries whose courts have been prescribed under this under the act that is under the foreign judgment regulations bankruptcy and winding up in dealing with the recalcitrant judgment data bankruptcy or its corporate equivalent winding up presents both opportunities and threats judgment creditors may use the threat of bankruptcy or winding up to encourage debtors to pay service of the bankruptcy notice on the dettor means that he or she must pay the debt within 14 days failure to do so constitutes an act of bankruptcy which entitles the Creditor to take the Second Step which is presentation of a bankruptcy petition if the dettor is then declared bankrupt a trustee is appointed to sell the bankrupts assets after the deduction of expenses to cover the petition and the trustees administrative expenses the remaining assets if any are distributed on a priter basis amongst those who can prove a debt owing to them similar Provisions apply in relation to the winding up of an insolvent corpor Corporation under the corporations act 2001 uh sections 570 468 subsection 4 and section 500 have a look at the bankruptcy act sections 116 and 118 subsections 1 and 2 Section 119 subsections 1 and two and in particular have a good look at the bankruptcy regulations regulation 6.03 costs the topic of costs examines the circumstances in which one party may be ordered to pay another party's costs and the procedures for determining how these costs are to be calculated a party to a proceeding cannot recover any cost of the proceeding from another party other than under chapter 17A or by order of the Court according to rule 680 the general rule is that the loser pays the Winner's cost of a proceeding including an application in a proceeding costs are always in the discretion of the court but usually follow the unless the court orders otherwise see rule 681 costs can be awarded on several bases notably the conservative standard basis and the more generous Indemnity basis sometimes it's not clear who should be awarded costs and if cost should be awarded at all but cost should be reme costs should be remembered are dealt with exclusively under chapter 17A the Supreme Court of Queensland has a statutary power to award costs in all cases C proceedings act 2011 section 15 the general rule is that the loser pays the cost necessarily incurred by the winner but that courts May order otherwise under rule 681 Awards of cost are not intended to indemnify a party for all the expenses that it has occurred in litigation at most costs are intended to indemnify a party against the legal expenses it has incurred and against payments necessarily made in relation to the prosecution or defense of the case it follows therefore that unrepresented parties are not permitted to claim for the time they have taken to prepare their cases although perhaps anomalously self-representing solicitors are entitled to their costs see CIA and hannes 1994 third party funded litigation litigation is not always funded by the parties on the record plaintiff's litigation is sometimes funded by trade unions in negligence actions the defense is typically conducted by the defendant's insurer plaintiff's litigation is sometimes run on a contingency basis the plaintiff being charged by its legal representative only in the event of success but sometimes at a higher rate than would otherwise be the case in these cases parties may not be liable to pay for the legal expenses they incur generally third parties are able to recover cost from unsuccess unsuccessful litigants similarly successful litigants may be able to recover cost from third parties see KN and FP special assets limited cost Awards against practitioners courts May award cost against a party's legal advisers see rule 690 690 tells us about lawyers delay or neglect the court May order a lawyer to repay the lawyer's client all or part of any costs ordered to be paid by the client to another party if the party incurred cost because of the lawyer's delay misconduct or negligence cost orders made against practitioners and their firms when it appears to a court that a law practice has provided legal services to a party without reasonable prospects of success such orders are a discretionary and may provide full or part Indemnity to the winning party Dua and Minister for immigration local government and ethnic Affairs 1993 is an example in the exercise of this discretion another common situ situation is where solicitors purport to act for parties by which they have not been retained if there is no rational basis on which legal arguments could succeed you would also be on thin ice types of cost award an Australian lawyer is entitled to charge and be allowed the cost under the scale of cost for work done in a proceeding in the court there are two scales of costs the standard basis under rule 702 which says that unless these rules are in order of the court otherwise provides a cost assessor must assess costs on the standard basis in practice costs awarded on the standard basis normally amount to considerably less than the expenses actually incurred one study reported in New South Wales suggested that the cost recovery was a mere 59% for cases proceeding to a verdict and 72% for cases which settled the second scale is the indemnity basis under rule 703 it just simply says that the court May order cost to be assessed on the indemnity basis the indemnity basis is generously defined where a party acts as a trustee executive administ administrator personal representative or in some other fiduciary capacity and is entitled to costs out of property held or controlled in the relevant capacity all costs are allowed except those incurred in breach of the party's relevant duties have a look at rule 42.5 a problematic winners there are two types of problematic winners parties who win in the wrong court and a party who ultimately wins but loses on several issues considering firstly a party who wins in the wrong Court while large claims cannot be bought in lower courts Small Claims can be bought in higher courts those whose cases should have been bought in a lower court receive costs based on the cost to which they would have been entitled in the lower court and are sometimes required to compensate the defendant for the additional cost occasioned by the decision to litigate in a higher Court the rules in all cases are discretionary the other situation is where a party ultimately wins but loses on several issues normally the winner gets the costs if one of the issues has been the subject of a notice to admit normally a party must pay the cost of the proof of the fact in question however there are some cases in which costs will be a portioned by issue which may involve difficult calculations more usually an order may be made that the loser pays only a proportion of the Winner's costs interlocutory orders usually the costs of interlocutory hearings are deferred pending the outcome of the case such costs are not payable until the end of the proceeding unless otherwise ordered there are several possible orders dealing with these costs and we'll look at some of them and in order that a party pays costs in any event means that it must pay the cost of an application even if it's ultimate ultimately successful but subject to the provisions in the rules to the contrary an order for cost in the cause means that cost of the application must be borne by the party which ultimately must bear the costs of the action cost of the proceeding include cost of the trial as well as cost of interlocutory applications and is to be contrasted with cost of the trial which on the basis of the ma of the maxim espresso unius EST exclusio alterus the pr that principle includes only costs of the trial cost thrown away these are costs which have been incurred in connection with the taking of steps which have been rendered worthless as a result for example of a default judgment being set aside or summary judgment being set aside no order as to cost means that each side must bear its own costs if an order is silent as to costs then the following presumptions operate successful applicants and successful opponents of applicants are entitled to cost in the cause unsuccessful parties are not entitled to their costs as cost in the cause and where there is an unopposed motion the costs of both parties are cost in the cause the last phrase where is where costs are reserved this means that costs follow the event unless the court orders otherwise and have a look at rule 698 there are also cases in which cost should not follow the event examples of this are public interest litigation and where you're dealing with impecunious parties I've mentioned a couple of cases in the study guide determining the Quantum of costs costs are assessed according to a relatively primitive peac meal formula dating from a time when it was regarded as appropriate to determine remuneration based on whether items having as attainable values were done rather than based on who performed them and on how much people willing to pay for them lawyers according to the peac meal model will be paid more if they're efficient they will not be paid more if they are otherwise better the peac meal work formula is found in the scales of cost associated with most rules of court and these are set out in schedule one of the Queensland rules if the parties cannot agree on costs someone else must quantify the cost award this is done under chapter 17 part 3 where costs are assessed by an assess by an assessing registar or cost assessor an application for a cost assessment is made under 743a the court may direct preparation of an itemized bill under rule 743c the parties however may agree on a cost assessor to be appointed rule 743 e otherwise one will be appointed by the registar or Court under rule 74 3F the process for taxing cost is set out in detail in the study guide the irony is that the process of determining cost itself incurs further costs the last topic is appeal costs while it's often reasonable that litigant should bear the risks associated with unsuccessful litigation there is one circumstance in which this arguably unfair if a party succeeds before a court at first instance and loses on appeal it cannot normally be said that its decision to litigate was not unreasonable moreover it will normally be reasonable for that party to contest the appeal in recognition of this jurisdictions have made Provisions for the costs ordered against the unsuccessful respondents to be paid for out of a special fund under the appeal cost funds Act 1973 the amount recoverable is limited this concludes your unit on civil procedure you should now be in a position of having met all of the un objectives namely being able to explain the court adjudication process under the adversarial system in Queensland to be able to complete the court forms required to commence and proceed with an action you should be able to articulate the procedures of the Supreme Court of queens and by reference to its legislation its rules and practice directions which give which govern those procedures you should be able to draft the appropriate pleadings for a hypothetical fact situation and critically examine the costs and fees associated with conducting litigation you should now be able to use appropriate style and terminology to communicate effectively in this particular discipline and should be able to Cate and utilize legal materials consistent with the content covered in this unit I wish you all the very best for your future studies I'm Andrea Turner and bye for now