Alabaster v Alabaster (Ruling No 2)
[2016] VCC 950
•7 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
FAMILY PROPERTY LIST
Case No. CI-15-02521
| JUDIE ANNE ALABASTER | Plaintiff |
| v | |
| CASEY ANNE ALABASTER | First Defendant |
| and | |
| NEAL COLLIN | Second Defendant |
| and | |
| PAUL EMANUEL WANIS | Third Defendant |
| and | |
| MELISSA CAROLINE WANIS | Fourth Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February and 22 April 2016 | |
DATE OF RULING: | 7 July 2016 | |
CASE MAY BE CITED AS: | Alabaster v Alabaster & Ors (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 950 | |
RULING
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Subject: COSTS
Legislation Cited: County Court Civil Procedure Rules 2008; Trustee Act 1958, s69
Cases Cited: Alabaster v Alabaster (Ruling No 1) [2016] VCC 459
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Isles with Mr D Cole | Stephen Peter Byrne Lawyer |
| For the First Defendant | Mr B McCullagh | Neal Collin Lawyers |
| For the Second, Third and Fourth Defendants | Mr D Connors | - |
HER HONOUR:
1 On 22 April 2016, I ruled that the plaintiff have leave to join as defendants to the proceeding, Mr Neal Collin and Mr Paul and Mrs Melissa Wanis.[1] I allowed the parties leave to file written submissions as to the future conduct of the proceeding to be filed by 29 August 2016.
[1]Alabaster v Alabaster (Ruling No 1) [2016] VCC 459
2 The plaintiff filed submissions that the orders I should make are as follows:
(i) Subject to the direction of the trial judge, the claim between the plaintiff and the first defendant be determined as a preliminary issue and, upon determination of that issue, the claim against the second, third and fourth defendants be heard and determined at a date to be fixed by the trial judge.
(ii) All the defendants have liberty to participate in the determination of the preliminary issue between the plaintiff and the first defendant, should they so choose; otherwise the second, third and fourth defendants be otherwise excused from that hearing.
3 The Wanis’ position was that the plaintiff’s claim against the first defendant be heard and determined first, with the respondents (the Wanis’), being excused from attending or participating. Then, if necessary, any claim surviving as against the remaining defendants be heard and determined subsequently.
4 I received no submissions from Mr Collin, the solicitor.
5 I propose to make the following Orders on the application:
(1) Subject to the determination of the trial judge, the claim between the plaintiff and the first defendant be determined as a preliminary issue and, upon determination of that issue, the claim against the second, third and fourth defendants be heard and determined at a date to be fixed by the trial judge.
(2) Liberty to all the defendants to participate in the determination of the preliminary issue between the plaintiff and the first defendant should they so choose; otherwise the second, third and fourth defendants be otherwise excused from that hearing.
(3) Pursuant to s69 of the Trustee Act 1958 and Order 79 of the Rules, the funds held in the second defendant’s trust account be paid into Court.
(4) The plaintiff have leave to file and serve an amended writ and statement of claim in the form attached on or before 30 June 2016.
Costs
6 The plaintiff and the Wanis’ made submissions on costs.
7 The plaintiff submitted that costs should follow the event. The plaintiff had not been indulged but obliged to amend by reason of the joined parties’ conduct. Further, as Mr and Mrs Wanis and Mr Collin resisted their joinder and participated in the application, the costs of 29 February 2016 should be paid by Mr Collin and Mr and Mrs Wanis.
8 The Wanis’ submission was that the plaintiff was required to make the application for joinder against the Wanis’ and sought the indulgence of the Court to do so. The plaintiff also sought, in its application, that the respondents (the Wanis’) pay the costs of such application. Whilst such applications are normally heard ex parte, in these circumstances where costs were sought and the Wanis’ had been served with notice of the application, the Court determined that the Wanis’ should be heard. The submission was that there was no reason why there should be a departure from the normal course for such applications that the applicant should bear its own costs.
Reasons
9 This was an application to add parties to the proceeding. Such applications are ordinarily made ex parte without notice to the proposed defendants and in the normal course the plaintiff bares the costs of the application. In this case, the proposed defendants were served. Further, the plaintiff sought an order against the Wanis’, the proposed third and fourth defendants, that they pay the costs of the joinder application. Both Mr Collin and the Wanis’ were represented by counsel at the hearing of the application and sought to be heard and opposed the joinder.
10 Given those matters, I determined to hear counsel representing the proposed defendants. They were unsuccessful in opposing the joinder in that I determined to join the second, third and fourth defendants.
11 In those circumstances, I consider the second defendant should pay 40 per cent of the plaintiff’s costs of the hearing on 19 February 2016 and the third and fourth defendants should pay 40 per cent of those costs, the plaintiff paying 20 per cent of its costs of the application.
12 I make the above order in relation to costs to reflect the fact that the proposed defendants were unsuccessful in opposing the application. I consider the plaintiff should be responsible for a portion of its costs because the plaintiff took the unusual course of serving the proposed defendants with the application and seeking an order that the Wanis’ pay the costs of the application. In my view, the very fact that the plaintiff served the application upon the defendants seeking that the proposed third and fourth defendants pay the costs of the application ensured that they would appear in court to oppose the application.
13 Accordingly, the Orders I make are as follows:
(1) Subject to the determination of the trial judge, the claim between the plaintiff and the first defendant be determined as a preliminary issue and, upon determination of that issue, the claim against the second, third and fourth defendants be heard and determined at a date to be fixed by the trial judge.
(2) Liberty to all the defendants to participate in the determination of the preliminary issue between the plaintiff and the first defendant should they so choose; otherwise the second, third and fourth defendants be otherwise excused from that hearing.
(3) Pursuant to s69 of the Trustee Act 1958 and Order 79 of the Rules, the funds held in the second defendant’s trust account be paid into Court.
(4) The plaintiff have leave to file and serve an amended writ and statement of claim in the form attached on or before 30 July 2016.
(5) The second, third and fourth defendants pay 80 per cent of the plaintiff’s costs of the hearing on 19 February 2016. As to the 80 per cent of costs, the second defendant pay 40 per cent and the third and fourth defendants pay 40 per cent.
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