Alterator v Savona

[2012] NSWSC 1176

Supreme Court

New South Wales

Medium Neutral Citation:

Alterator v Savona [2012] NSWSC 1176

Hearing dates:

24 September 2012

Decision date:

24 September 2012

Jurisdiction:

Equity Division

Before:

Lindsay J

Decision:

(1)Declare that the defendant holds all her right, title and interest in the land in dispute on trust for the plaintiff.

(2)Order that the defendant convey to the plaintiff all her right, title and interest in that land.

(3)Order that a judgment sum be entered for the plaintiff.

(4)Order that the defendant pay the plaintiff's costs.

Catchwords:

EQUITY - trusts and trustees - vesting orders, conveyances and transfers - consent orders
PROCEDURE - costs - departing from the general rule - offers of settlement more favourable to the defendant - misapprehension by the defendant - self-represented litigant - costs not assessed on indemnity basis

Category:

Principal judgment

Parties:

Mary Noel Alterator
Theodora Eleonora Savona

Representation:

Mr Dupree
TE Savona (self represented)
David Hunter Solicitor

File Number(s):

2012 / 133464

Judgment - EX TEMPORE

1. These proceedings were commenced by a statement of claim filed on 27 April 2012. Substantial concessions have been made by the defendant, both in a defence filed on 8 June 2012 and in person at the hearing of the proceedings today.

1. The plaintiff is represented by solicitors and counsel. The defendant is self-represented although she comes to Court with a friend with whom she has been able, I gather, to have some discussions.

1. The parties have agreed upon the resolution of all matters in dispute between them save for the question of costs. The defendant has indicated that she is content for the proceedings to be resolved by the making of those orders and for there, then, to be an argument about the costs of the proceedings.

1. Before proceeding to make any orders, I note that, at one stage, there was an apprehension on the part of the defendant that the plaintiff had lodged a caveat over property owned by her, being Lot 1 in Deposited Plan 445370 and the whole of the land contained in Folio Identifier 1/445370.

1. The plaintiff has expressly disclaimed any claim to that land, or any estate or interest in that land. I formally note that disclaimer for future reference. The disclaimer does not preclude the possibility that the plaintiff might in the future seek to execute against that land such entitlements as she might have arising out of the orders to be made in these proceedings today. However, any claim of entitlement referable to the land going beyond execution of today's judgment is disclaimed.

1. The orders that are made by consent are as follows:

(1) Declare that the defendant holds on trust for the plaintiff all her right, title and interest in the land comprising lot 2 in Deposited Plan 628998 and being the land comprised in Folio Identifier 2/628998.

(2) Order that the defendant convey to the plaintiff all her right, title and interest in that land.

(3) Note that, in purported performance of the obligation contained in paragraph 2, the defendant has executed a memorandum of transfer in favour of the plaintiff and, subject to these orders being made, delivered it to the legal representatives of the plaintiff.

(4) Order that judgment be entered for the plaintiff in the sum of $14,682.00.

(5) Order that, otherwise, all claims for relief made in the proceedings are dismissed.

(6) Reserve to the plaintiff liberty to apply should it be necessary for there to be supplementary orders to give effect to the declaration referred to in paragraph 1 or the order for conveyance referred to in paragraph 2.

(7) Order that today's orders be entered forthwith.

1. Before hearing submissions on costs, I note some matters of record.

1. The first is that the interest of the defendant in the land comprising Lot 2 in Deposited Plan 628998 is limited to that of a joint tenant with the plaintiff in a one sixth share in the fee simple.

1. The holders of the other five sixths have not been joined in these proceedings or given notice of them. It is probably not necessary for them to have been given notice of the proceedings. However, as a matter of record, I note that they have not participated in the proceedings and such, if any, rights as they might have vis-à-vis the plaintiff and the defendant cannot be affected by the resolution of these proceedings today as between the plaintiff and the defendant.

1. The next matter of record that should be noted is that, although the defendant has not filed any cross-claim in the proceedings, she has in the course of submissions to the Court today indicated that she has had some offsetting claim that she would have asked the Court to take into account had the parties not reached agreement on the resolution of the proceedings.

1. My understanding of the settlement that has been effected by the parties is that, subject to the question of costs and the orders that have been made in determination of the proceedings, all questions in dispute between the parties have been resolved.

1. There remains only the question of costs and I will turn my attention to that.

1. [The parties were heard on the question of costs. The plaintiff applied for an order that the defendant pay the costs of the proceedings assessed on an indemnity basis. She adduced evidence to the effect that she had made offers of settlement more favourable to the defendant than the orders today agreed between the parties. The defendant acknowledged that such offers had been made; but contended that she had refrained from accepting them because of a misapprehension, in part caused by statements made in correspondence by the solicitor for the plaintiff, that the plaintiff had lodged a caveat over the defendant's land.]

1. The plaintiff is entitled to an order for costs, but I decline to make an order that those costs be assessed on the indemnity basis. The order I will make, in addition to the orders that have been made, is that the defendant pay the costs of the proceedings.

1. I order that the exhibits may be returned forthwith. Any exhibits returned must be retained intact by the party or person that has produced the material until the expiry of the time to file an appeal or until any appeal has been determined.

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Decision last updated: 28 September 2012