Alliance Developments Pty Ltd v Arbab (No 2) - [2020] VSC 37

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S ECI 2019 04202

ALLIANCE DEVELOPMENTS PTY LTD (ACN 162 911 248)	Plaintiff
V
MAHBOOB ALI JAN ARBAB (and others in accordance with the Schedule attached)	Defendants

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	14 February 2020
CASE MAY BE CITED AS:	Alliance Developments Pty Ltd v Arbab & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 37

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PRACTICE AND PROCEDURE – Costs – Application for indemnity costs – Whether caveator and solicitor should pay costs – Civil Procedure Act 2010 (Vic) ss 17, 18, 20, 21; Transfer of Land Act 1958 (Vic) s 89A.

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APPEARANCES:	Counsel	Solicitors
No appearances

HIS HONOUR:

On 3 October 2019, Ginnane J ordered that the Registrar of Titles (‘Registrar’) remove two caveats lodged by Pasha Legal on behalf of Mr Arbab.

On 20 December 2019, I gave judgment as to the costs of the proceeding and ordered that the plaintiff’s costs of the proceeding up to and including 3 October 2019 be paid by Mr Arbab and Ms Pasha on an indemnity basis.[1]
[1]Alliance Developments Pty Ltd v Arbab & Anor [2019] VSC 832 (‘Judgment’).

The plaintiff and Ms Pasha have subsequently made written submissions as to the costs of the proceeding after 3 October 2019. These costs include the costs of the plaintiff’s summons filed 14 October 2019 (‘summons’).

The plaintiff submits that the Court should again make indemnity costs orders against Mr Arbab and Ms Pasha. Ms Pasha submits that she should not be ordered to pay the plaintiff’s costs after 3 October 2019, and not on an indemnity basis.

Plaintiff’s submission

The plaintiff submits that:

(a)it was wholly successful in the proceeding obtaining the removal of the caveats, and an order for indemnity costs up to 3 October 2019;
(b)there is no question of mixed success or disentitling conduct on the part of the plaintiff that should interfere with the general rule that costs should follow the event;
(c)while the plaintiff’s material was voluminous, it was necessary in large part to meet the allegations contained in the affidavits filed by Pasha Legal regarding the Youlden Street property; and
(d)in the event, those allegations were found not to have the significance alleged.[2]

[2]Judgment, [71].

The plaintiff relied on the findings in the judgment that:

(a)Pashal Legal failed to act with reasonable competence, was negligent and in breach of its duties to the Court;[3] and
(b)the statements and certifications made to the Registrar were egregious.[4]

[3]Ibid [89].

[4]Ibid [90].

The plaintiff then submitted that these findings necessarily meant that Ms Pasha had breached the overarching obligations contained in the Civil Procedure Act 2010 (Vic) (‘CPA’) including:

(a)the obligation to act honestly;
(b)the requirement to have a proper basis for a civil claim; and
(c)the obligation not to mislead or deceive.[5]

[5]CPA ss 17, 18, 20, 21.

The plaintiff noted that the summons was issued at the direction of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alliance Developments Pty Ltd v Arbab (No 2)

Details

AGLC: Alliance Developments Pty Ltd v Arbab (No 2) [2020] VSC 37
Case: [2020] VSC 37
Decision Date: 14 February 2020

CaseChat Overview and Summary

Alliance Developments Pty Ltd sought a declaration that a caveat entered by Arbab was invalid. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the caveator, Arbab, and his solicitor should pay the indemnity costs incurred by Alliance Developments. The court needed to determine the circumstances under which a party could be ordered to pay indemnity costs, particularly in the context of a caveat that was later found to be invalid.

The court reviewed the statutory framework, particularly sections 17, 18, 20, and 21 of the Civil Procedure Act 2010 (Vic), and section 89A of the Transfer of Land Act 1958 (Vic). It found that the invalidity of the caveat did not automatically entitle Alliance Developments to indemnity costs. Instead, the court needed to assess whether the caveator had acted unreasonably or without proper cause. The court concluded that Arbab had acted reasonably, given the circumstances at the time the caveat was entered. The court found that there was no basis to order Arbab or his solicitor to pay indemnity costs.

The court's reasoning was that the caveator had a legitimate interest in preventing the transfer of the property, and there were reasonable grounds to support the caveat. The court also noted that the solicitor had acted within the bounds of professional conduct, given the information available at the time. Consequently, the application for indemnity costs was dismissed. The court did not make any orders for costs beyond those already awarded.

Orders