Casey v Giderson (Costs Ruling)

[2023] VSC 472

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

PRACTICE COURT

S ECI 2023 02928

MARK CASEY (IN HIS CAPACITY AS ADMINISTRATOR AD LITEM OF THE ESTATE OF JAMES VINCENT CASEY)	Plaintiff
v
NORMAN LESLIE GIDERSON	First defendant
MICHELLE ANNETTE GIDERSON	Second defendant
REGISTRAR OF TITLES	Third defendant

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JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 July 2023
DATE OF RULING:	11 August 2023
CASE MAY BE CITED AS:	Casey v Giderson (Costs Ruling)
MEDIUM NEUTRAL CITATION:	[2023] VSC 472

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COSTS — Application by registered proprietors for removal of caveat pursuant to Transfer of Land Act 1958, s 89A — Letters of administration ad litem for deceased estate of caveator — No proceeding satisfying Transfer of Land Act 1958 s 89A(3)(b) — Applications to Court — Absence of power to extend caveat — Interim injunction granted — Whether plaintiff substantially successful — Whether exception to general rule that successful party receive its costs — Whether defendants should receive their costs — Whether proceeding was unnecessary — Calderbank offer — Application to reallocate costs of related ex parte proceeding for grant of letters of administration ad litem.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	C M Symons	Deutsch Miller
For the First and Second Defendants	E W Moon	McCarthy Partners

HIS HONOUR:

Introduction

1. This is a costs dispute arising from matters I heard and determined in the Practice Court on 30 June, 4 July (on the papers), and 5 July 2023.

1. On 30 June and 4 July 2023, I heard and determined ex parte applications by the plaintiff in proceeding S PRB 2023 15848 for the grant and subsequent amendment of letters of administration ad litem of the deceased estate of his son (the Related Proceeding). On the application of the plaintiff on each occasion, I ordered that the costs of each of those applications be paid or retained out of the estate.

1. By 30 June 2023, when the Related Proceeding was commenced, the plaintiff’s need to obtain letters of administration ad litem was urgent. The plaintiff claimed that the deceased estate held an interest over certain land as chargee pursuant to loan agreements to which the registered proprietors were party as guarantors. The deceased estate had a caveat over the land reflecting this claim. However, on about 31 May 2023, the deceased estate had received a notice from the Registrar of Titles stating that the caveat would lapse on the ‘first moment of 6 July 2023’ unless certain things occurred before that date.

1. On 5 July 2023, the plaintiff commenced this proceeding by originating motion between parties, and by summons on originating motion he sought the two substantive orders sought in the originating motion. Those were:

(a)        at paragraph 2, an injunction directed to the third defendant to delay registering any dealing with the land situated at 12 Marbray Close, Sorrento (the Property) until further order; and

(b)       at paragraph 3, an order ‘extending the operation of…