Berhero Pty Ltd v Hinds (No 2)

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Berhero Pty Ltd v Hinds (No 2)

Citation: 

[2024] ACTSC 377

Hearing Date: 

On the papers

Final Submissions Received: 

3 November 2023

Decision Date: 

25 November 2024

Reasons Date:

19 December 2024

Before:

Loukas-Karlsson J

Decision: 

(1)    The Plaintiff is to pay the Defendants’ costs of and incidental to the application in proceeding filed and heard on 12 October 2023 a party-to-party basis.

Catchwords: 

COSTS – PRACTICE AND PROCEDURE – Whether a party acted ‘so unreasonably’ –  where application consented to –plaintiff no longer had a caveatable interest –  further order required to remove caveats under an earlier court order – earlier court orders sought and obtained by plaintiff – plaintiff’s solicitor represented plaintiff through town agents at the time – requirement for further order unappreciated by the plaintiff’s solicitors until informed by defendants’ solicitors – plaintiff behaved ‘so unreasonably’ – plaintiff to bear the defendants’ costs on party-to-party basis

Legislation Cited: 

Court Procedures Act 2004 (ACT) ss 5A, 5A(1)(b), 5A(2)

Court Procedures Rules 2006 (ACT) rr 1706, 1721, 1721(1), 6006(2)(a)

Cases Cited: 

Australian Capital Territory v SMEC Australia Pty Ltd [2018] ACTSC 252; 337 FLR 390

Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194

Berhero Pty Ltd v Hinds [2019] ACTSC 378

Berhero Pty Ltd v Hinds [2023] NSWSC 1022

Brennand v Hartung [2012] ACTSC 150

Business Acquisitions Australia Pty Ltd v Renshall - Costs [2006] NSWSC 1399

EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92

Esposito v Commonwealth (1988) 80 ACTR 9

Gang v You (No 2) [2023] ACTSC 32

GJ v AS (No 4) [2017] ACTCA 7

Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284

Haines v Croft [2001] ACTSC 77; 146 ACTR 59

In the Estate of Edna Ann Levy [2018] ACTSC 150

Kane’s Hire Pty Ltd v Anderson Aviation Pty Ltd [2023] FCA 381

Lombardo v Bahnan (No 2) [2014] VSC 438

Marhaba v Chen (No 2) [2024] ACTSC 288

Michael Wilson & Partners Ltd v Emmott [2024] NSWSC 1489

Michael Wilson & Partners Ltd v Nicholls (No 9) [2022] ACTCA 70

Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84; 97 NSWLR 681

O’Neill v Williams [2007] NSWSC 51

Oliver v Roberts (No 2) [2018] ACTCA 44

Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72

Petersons v Pitches [2024] ACTSC 298

Punchbowl Casual Dining Pty Ltd v Rashays Cafes & Restaurants Pty Ltd [2024] FCA 1265
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622

Renton v Kelly [2018] NSWSC 1377

Rural & General Insurance Broking Pty Ltd v Australian

Prudential Regulation Authority [2009] ACTSC 67; 231 FLR 199

Supabarn Supermarkets Pty Ltd v Cotrell Pty Ltd (No 4) [2020] ACTSC 131

VTS IT Pty Ltd v Russell [2015] ACTSC 230

Wild v Meduri [2024] NSWCA 230

Parties: 

Berhero Pty Ltd ( Plaintiff)

Paul Francis Hinds ( First…

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Details
Case
[2024] ACTSC 377
Decision Date

CaseChat Overview and Summary

Berhero Pty Ltd, the plaintiff, contested against Hinds, the defendant, in a case before the Supreme Court of Queensland. The primary dispute was whether Berhero acted unreasonably in maintaining caveats on property after it had ceased to have a caveatable interest. The case was a follow-up to an earlier decision where the plaintiff had successfully lodged caveats. However, subsequent events led to the plaintiff no longer having a caveatable interest. Despite this, the plaintiff did not remove the caveats, necessitating the defendant to seek a court order to remove them. This action led to the plaintiff being ordered to pay the defendant’s costs.

The court needed to decide if the plaintiff’s conduct was unreasonable, warranting an order for the plaintiff to bear the defendant’s costs. The issue hinged on whether the plaintiff’s solicitors appreciated the requirement for a further order to remove the caveats. The court examined the circumstances under which the earlier orders were made and whether the plaintiff’s solicitors reasonably believed they had a continuing caveatable interest. The court also considered the communication between the solicitors and the timing of the plaintiff’s realisation of the need for a further order.

The court found that the plaintiff’s solicitors had failed to appreciate the necessity for a further order to remove the caveats, which was a critical oversight. This was compounded by the fact that the plaintiff’s solicitor had been representing the plaintiff through town agents, which may have contributed to the misunderstanding. The court concluded that the plaintiff’s conduct in maintaining the caveats after it was evident they no longer had a caveatable interest was unreasonable. Therefore, the plaintiff was ordered to pay the defendant’s costs on a party-to-party basis. The court emphasised the importance of proper legal advice and timely action in such matters to avoid unnecessary costs.

Orders

Orders of the court

(1) The Plaintiff is to pay the Defendants’ costs of and incidental to the application in proceeding filed and heard on 12 October 2023 a party-to-party basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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