Balgra Pty Ltd v Makris; Balgra Shopping Centre Management v Makris

[2017] SASC 188

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

BALGRA PTY LTD v MAKRIS; BALGRA SHOPPING CENTRE MANAGEMENT v MAKRIS

[2017] SASC 188

Judgment of The Honourable Chief Justice Kourakis

21 December 2017

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT

Judgment on the costs of an application to intervene in proceedings seeking summary orders for possession of property.

The plaintiffs in both actions in this Court sought summary orders, not opposed by the defendant, for possession of two properties owned by the defendant (the husband). The defendant’s wife (the intervener) sought to intervene in these proceedings.

There were contemporaneous proceedings in the Family Court of Australia, whereby, on the wife’s application receivers were appointed over the husband’s property.  The plaintiffs and the husband appealed the receivers’ appointment.

At the first hearing of this matter, the parties agreed to stay these proceedings pending the outcome of the proceedings of the Family Court of Australia. Time was also spent dealing with the suppression of parts of these proceedings. The Full Court of the Family Court allowed the plaintiffs’ appeal and set aside the order appointing receivers.

The plaintiffs and the intervener seek their costs of these proceedings.

Held per Kourakis CJ, granting the plaintiffs their costs against the intervener: 

1.  The quashing of the orders appointing receivers exposes the intervener’s application in this Court to have been without merit and demonstrates it wrongly curtailed the plaintiffs’ interest.

2.  The plaintiffs’ action in this Court was not improper nor contrary to any express order of the Family Court.

3.  The intervener is to pay the plaintiffs’ reasonable costs of the intervention.

BALGRA PTY LTD v MAKRIS; BALGRA SHOPPING CENTRE MANAGEMENT v MAKRIS
[2017] SASC 188

Civil

1. KOURAKIS CJ:     On 7 February 2017, the plaintiffs brought two actions (the possession proceedings) seeking summary orders for possession of 2 residential properties at Wootoona Terrace, St Georges and Hillside Road, Springfield (the Properties). The Properties were owned by the defendant Ross Makris.  Mr Makris did not oppose the orders.

2. On 20 March 2017 Ms Olivia Stratton-Makris, the wife of Mr Makris, intervened in the possession proceedings and sought orders that they be stayed.  On 24 October 2017 Ms Stratton-Makris’ application to intervene was dismissed by consent and orders for possession of the Properties were made by consent of the defendant.  Costs were reserved.  For the reasons which follow I order that Ms Stratton-Makris pay the plaintiffs’ costs of her intervention.

3. Ms Stratton-Makris commenced proceedings against her husband in the Family Court in July 2015 (the FCA Proceedings).

4. On 5 September 2016 the Family Court appointed Stuart Otway and Alan Scott as receivers over the property of Mr Makris, including the Properties.  Mr Makris and the plaintiffs appealed that order and sought a stay of the receivers’ appointment pending the outcome of the appeal.

5. On 7 December 2016 the Family Court stayed the order appointing the receivers.

6. From about November 2016 the plaintiffs sought to exercise their rights in respect of the Properties upon Mr Makris’ default on the relevant loans.  Demands were made on him pursuant to the terms of the mortgages, and subsequently in accordance with s 55A of the Law of Property Act 1836 (SA) and s 132 of the Real Property Act 1886 (SA).

7. Ms Stratton-Makris’ application to intervene in the possession proceedings was listed for argument in this Court on 13 April 2017.  On that day, time was spent dealing with an application for suppression of the matters raised in this Court, to prohibit the media reporting on matters pertaining to the FCA Proceedings which cannot be reported.

8. In relation to the substantive matter, the parties agreed to adjourn argument in these proceedings pending the decision of the Full Court of the Family Court on the condition that the plaintiffs provide an undertaking that they would not take any steps to enforce any of their rights over the Properties until further order.

9. On 5 October 2017 the Full Court of the Family Court allowed the appeal brought by the plaintiffs and Mr Makris and set aside the orders appointing the receivers over the Properties.

10. Ms Stratton-Makris intervened in these proceedings in aid of her application in the Family Court to appoint receivers over the Properties.  Ms Stratton-Makris was concerned that the stay of the order appointing the receivers left the plaintiffs free to enforce their mortgages in this Court without an effective contravener who could raise any objection which might properly be taken in the possession proceedings.

11. The quashing of the orders appointing receivers by the Full Court of the Family Court exposes Ms Stratton-Makris’ application in this Court as having been without merit.  An order in accordance with the ordinary rule that costs follow the event should be made unless there is a proper reason to do otherwise.

12. Ms Stratton-Makris contends that the plaintiffs’ application was a ‘possible contempt’.  It is not obvious to me why that is so.  No express order of the Family Court abrogated their rights as mortgagees.  Nor has that contention been made good by an application in the Family Court.  It is not a proper reason to depart from the ordinary order.

13. Ms Stratton-Makris also contends that she acted reasonably and withdrew her application at the first opportunity after the decision of the Full Court of the Family Court.  It may be accepted that Ms Stratton-Makris acted reasonably to protect her interests as she perceived them to be.  However the decision of the Full Court shows that the plaintiffs’ interests were wrongly curtailed by her intervention in that there was no good reason to delay the possession proceedings because the receivers had been wrongly appointed.

14. I order that Ms Stratton-Makris pay the plaintiffs’ reasonable costs of her intervention.