Bennett v Pieros Corporation Pty Ltd
[2004] WASC 8
BENNETT & ORS -v- PIEROS CORPORATION PTY LTD & ORS [2004] WASC 8
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 8 | |
| Case No: | CIV:2413/2003 | 5 JANUARY 2004 | |
| Coram: | EM HEENAN J | 5/01/04 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Costs to be taxed on scale ordered | ||
| B | |||
| PDF Version |
| Parties: | JOYCE FLORENCE BENNETT & ORS PIEROS CORPORATION PTY LTD PROJECT 2001 PTY LTD (ACN 097 962 831) JOSEPH TILLI REGISTRAR OF TITLES |
Catchwords: | Costs Indemnity costs Application for removal of caveat Consent to removal after commencement of proceedings Scale costs only allowed |
Legislation: | Rules of the Supreme Court, O 66 r 11(3) Transfer of Land Act 1893 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiffs
AND
PIEROS CORPORATION PTY LTD
First Defendant
PROJECT 2001 PTY LTD (ACN 097 962 831)
Second Defendant
JOSEPH TILLI
Third Defendant
REGISTRAR OF TITLES
Fourth Defendant
Catchwords:
Costs - Indemnity costs - Application for removal of caveat - Consent to removal after commencement of proceedings - Scale costs only allowed
(Page 2)
Legislation:
Rules of the Supreme Court, O 66 r 11(3)
Transfer of Land Act 1893
Result:
Costs to be taxed on scale ordered
Category: B
Representation:
Counsel:
Plaintiffs : Mr S G Leslie
First Defendant : Mr G S Harrison
Second Defendant : Mr G S Harrison
Third Defendant : Mr G S Harrison
Fourth Defendant : No appearance
Solicitors:
Plaintiffs : Wilson & Atkinson
First Defendant : Tottle Partners
Second Defendant : Tottle Partners
Third Defendant : Tottle Partners
Fourth Defendant : No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 EM HEENAN J: These proceedings have been brought by a number of plaintiffs who are mortgagees holding security against land at Benara Road, Caversham. The security which they have is a registered mortgage under the provisions of the Transfer of Land Act. Because of default by the registered proprietor they exercised the power of sale under the mortgage and entered into an executory contract of sale to the second defendant, Project 2001 Pty Ltd. That purchaser defaulted and, consequent upon effective notice being given under the contract of sale, that contract was terminated. Again, exercising their power of sale under the mortgage security, the plaintiffs entered into an executory contract of sale to sell the property to a third party and the third party is ready, willing and able to complete. In fact settlement has occurred and the proceeds are held in escrow by a bank conditional upon the removal of the caveat which I shall now describe.
2 This caveat, lodged by the first defendant, Pieros Corporation Pty Ltd, is an absolute caveat forbidding the registration of any dealing with the subject land because of the existence of a registrable charge for the value of work done, services rendered and goods supplied under a building contract by the first defendant in July 1998.
3 It is accepted on both sides that the builder did have a caveatable interest for a charge under that building contract. However that charge, while it arose in July 1998, that is, before the registration of the mortgage in favour of the plaintiffs, was never registered. This caveat was lodged subsequent to the registration of the mortgage already spoken of. Under the provisions of the Transfer of Land Act and, in the absence of fraud - none being suggested, the interest of the caveator is deferred to the interest of the registered mortgagees.
4 Nevertheless, the caveat was lodged and it was lodged in circumstances where its lodgement was the product of decisions made by Pieros Corporation Pty Ltd, the first defendant, the second defendant, Project 2001 Pty Ltd, and its director the third defendant. So much should be inferred from the letter from Project 2001 Pty Ltd which is Exhibit JKG8 to the affidavit of Mr Grieve sworn 18 November 2003. That inference is strengthened by another letter from Project 2001 Pty Ltd dated 11 November 2003, Exhibit JKG13. I conclude therefore that all three defendants were co-operating and acting at the direction of the third defendant in the lodgement of that caveat.
5 On the facts already outlined it is acknowledged that while the caveator has a caveatable interest, because the mortgagees have secured
(Page 4)
- priority by the prior registration of their mortgage it was not justifiable for the first defendant to lodge an absolute caveat. It would have been justified in lodging a caveat subject to claim, but that was not done.
6 Nevertheless, the caveat claiming an absolute interest is an impediment to the registration of the transfer arising from the second mortgagees' sale from the plaintiffs to the third party purchaser. So these proceedings were commenced to secure an order for the removal of the caveat. They were commenced after correspondence from the plaintiffs' solicitors to the defendants and later to their solicitors threatening a claim for indemnity costs if the caveat were not removed.
7 The caveat was not immediately removed, but the defendants by their solicitor and counsel have acknowledged that it is not sustainable today and they consent to an order for its removal. The question, therefore, before me is whether or not the plaintiffs should have an order for costs against all the defendants or one or more of them only and, if so, whether any order for costs should be for indemnity costs as opposed to party and party costs.
8 I have been referred in the plaintiffs' written submissions, pars 15 to 25, to the authorities dealing with indemnity costs. These are not comprehensive, although I accept that they do deal with instances where indemnity costs have been allowed. In the present circumstances where this caveat was lodged by a layman without immediate legal advice it seems to me that it is a product of a mistake about the extent of entitlement of the caveator in an area of the law calling for formal knowledge and more adequate comprehension. In those circumstances it does not seem to me to be a case where indemnity costs are justified, especially having regard to Rules of the Supreme Court O 66, r 11(3) which provides, generally speaking, that the only costs which may be recovered are those provided for in the relevant scale.
9 I am, however, satisfied that an order for costs should be made against each of the three defendants and that having regard to the urgency and importance of this sale transaction that the costs allowed under the relevant item in the scale may be inadequate. I therefore propose to order that the plaintiff may recover costs, such costs to be reasonable costs in the opinion of the taxing officer, and that the limits prescribed by any relevant scale of costs may be exceeded at the discretion of the taxing officer if satisfied that work or services greater in value than the amount provided for by the scale have been necessarily performed.
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