Aughton v Wilkie (No 2)

[2010] NSWSC 1505

CITATION:	AUGHTON v WILKIE (NO 2) [2010] NSWSC 1505
HEARING DATE(S):	22 December 2010
JUDGMENT DATE :	22 December 2010
JUDGMENT OF:	Tamberlin AJ at 1
EX TEMPORE JUDGMENT DATE:	22 December 2010
DECISION:	1. Judgment for the plaintiff in the sum of $280,000. 2. The defendant to pay the plaintiff’s costs. 3. The Cross-Claim is dismissed with costs. 4. The Court declares that the cross-defendant has no right title or interest in the land comprising Lot 30 DP 1073293, being the land referred to in folio identifier 30/1073293, or in Lot 31 DP 1073293 being the land referred to in folio identifier 31/1073293. 5. The Court orders that the cross-defendant do all things necessary to forthwith remove caveat AE407-37F from the land. 6. The Court orders that should the plaintiff neglect or fail to remove the said caveat, the Registrar of the Supreme Court, Equity Division, be empowered to do all things necessary to effect such a removal.
CATCHWORDS:	PROCEDURE – slip rule – Uniform Civil Procedure Rules 2005, Pt 36, r 36.17 – removal of caveat – ruling that no interest in land but no consequential order for removal of caveat – order made under rule – no variation of costs order
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 (NSW), Pt 36, r 36.17
CATEGORY:	Procedural and other rulings
PARTIES:	Robert David Aughton – Plaintiff Brent Alan Wilkie - Defendant
FILE NUMBER(S):	SC 2009/287365
COUNSEL:	R Keller (Plaintiff) J-J Loofs (Defendant)
SOLICITORS:	Plaintiff self-represented John McDonald & Partners - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

TAMBERLIN AJ

22 December 2010

BRENT ALAN WILKIE (NO 2)

JUDGMENT

1 HIS HONOUR: In this matter I have been asked by Counsel for the defendant/cross-claimant to apply the slip rule under Pt 36, r 36.17 of the Uniform Civil Procedure Rules 2005 in relation to an order concerning the removal of a caveat. I think it is appropriate to do so, in view of the fact that there was a further amended cross-claim filed, seeking these orders, and they were not dealt with in the original decision, and had it been realised at the time by me, I would have made the orders. Accordingly, I apply the slip rule.

2 I am informed that the orders have been taken out, and, accordingly, it is necessary to consider the provisions of the slip rule.

3 In relation to the question of costs, it has been claimed by the defendant that there ought to be a modification of the order for costs, in view of the fact there was an issue as to whether the interest asserted by Mr Aughton had been made out. However, having regard to the substance of what was argued at the hearing, (it essentially turned on the question of misleading and deceptive conduct and there was no significant amount of time spent in endeavouring to press the question of right, title and interest of the land), the question of his claim to an interest in the land did not take any significant part of the hearing. I think in the circumstances, the appropriate order is that the order for costs should follow the ultimate outcome of the matter.

4 It is not appropriate to apportion the costs on the basis of separate issues in this case. I decline to make any modification to the order for costs in this matter. The orders costs that I have made will stand.

1. Judgment for the plaintiff in the sum of $280,000.

2. The defendant to pay the plaintiff’s costs.

3. The Cross-Claim is dismissed with costs.

4. The Court declares that the cross-defendant has no right title or interest in the land comprising Lot 30 DP 1073293, being the land referred to in folio identifier 30/1073293, or in Lot 31 DP 1073293 being the land referred to in folio identifier 31/1073293.

5. The Court orders that the cross-defendant do all things necessary to forthwith remove caveat AE407-37F from the land.

6. The Court orders that should the plaintiff neglect or fail to remove the said caveat, the Registrar of the Supreme Court, Equity Division, be empowered to do all things necessary to effect such a removal.

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