CC United Developments Pty Ltd v Wing Da Pty Ltd

[2019] NSWCA 45

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	CC United Developments Pty Ltd v Wing Da Pty Ltd [2019] NSWCA 45
Hearing dates:	6 March 2019
Decision date:	06 March 2019
Before:	Basten JA at [9]; White JA at [1]
Decision:	1. Dismiss the application for leave to appeal. 2. Applicants to pay the respondent's costs to be assessed on the ordinary basis.
Catchwords:	COSTS – Party/party – caveat lodged to protect right to renew lease – threat to give lapsing notice - proceedings resolved – order for indemnity costs against defendant – application for leave to appeal from decision awarding indemnity costs
Category:	Procedural and other rulings
Parties:	CC United Developments Pty Ltd (First Applicant) Charlie Elias (Second Applicant) Charbel Boutros (Third Applicant) Wing Da Pty Ltd (Respondent)
Representation:	Counsel: M W Sneddon (Applicants) S J Burchett (Respondent)   Solicitors: Paul Bard Lawyers (Applicants) Juris Cor Legal (Respondent)
File Number(s):	2018/323090
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: N/a Date of Decision: 28 September 2018 Before: Darke J File Number(s): 2018/243837

Judgment

1. WHITE JA:   This is an application for leave to appeal from an order of the Equity Division (Darke J) made on 28 September 2018 that four of the five applicants pay on the indemnity basis the respondent’s costs of an application for the extension of the operation of a caveat.

2. The application relates to an issue of practice and procedure involving only a question of costs. The Court was informed that costs have been assessed in the sum of $56,288.

3. The respondent was the plaintiff in the court below. It sought and obtained an order for the extension of a caveat that it had lodged in April 2018. The primary judge recorded that the interest claimed was a leasehold estate based upon the exercise of an option for renewal of a lease between the respondent and the first, third and fourth defendants (being three of the five applicants). The primary judge found that there was no reasonable basis to challenge the respondent’s right to maintain the caveat. That finding was not disputed on the application for leave to appeal. It appears that the caveat was lodged in circumstances where there were significant delays in registering the respondent’s new lease, and where the respondent was advised by the lessor that the property was listed for sale and that the purchaser was entitled to determine the tenancy.

4. In their written submissions, the applicants contend that there was no need for the respondent to bring proceedings for the extension of the operation of the caveat because shortly after the order for the extension of the operation of the caveat had been obtained and directions made for the hearing of the application for further extension of the caveat, the respondents forwarded (under protest) an executed form of an extension of lease that could be registered pending adjudication of the parties’ rights as to the form of the renewal of lease to be registered.

5. The Court was informed that the proceedings were commenced on 7 August. The ex parte orders for short service were said by the primary judge to have been obtained on 8 August. On 8 August, the solicitors for the applicants forwarded to the solicitors for the respondent a form of new lease to be executed by the respondent. They advised that if they received by 15 August a registrable, properly executed lease, evidently in the form proffered, and a withdrawal of caveat, then they would not lodge a statutory declaration of notice of the lapsing of the caveat. On 15 August, the solicitors for the respondent advised that the respondent’s position remained that it was entitled to a market rental review as at 1 June 2016 and had another claim against the applicants. They also said that:

"[I]n light of your denial of those entitlements and demand for the execution and return of the lease on renewal in the form proposed by you, including your threat at Court recently to regard the non-return of the draft lease as repudiation of the agreement for lease on renewal, we now enclose your form of lease [duly signed] under protest and reserving all rights to nonetheless pursue those entitlements independently of the registration of the lease."

6. The applicants claim that proceedings for extension of the operation of the caveat were unnecessary. The true position, as found by the primary judge, was that the service of the lapsing notice of the caveat was unwarranted because the respondent had a clear claim to the interest claimed in the caveat.

7. It appears from correspondence sent by the applicants’ solicitors that service of the lapsing notice on the respondent was calculated to place pressure on the respondent to execute the new lease in a form which it was unwilling to accept. That was not a proper use of the procedures for the service of a lapsing notice and led to the institution of the proceedings. It was open to either party from 15 August to take prompt steps to have the proceedings resolved in the way they ultimately were: that is, by the issue that has been raised being remitted to the New South Wales Civil and Administrative Tribunal.

8. The application for leave to appeal from the primary judge’s costs order raises no question of principle. I do not consider it to be seriously arguable that the primary judge erred in the order he made. The application for leave to appeal should be dismissed with costs.

9. BASTEN JA: I agree. The order of the Court is dismiss the application for leave to appeal; the applicants are to pay the respondent's costs.

10. Costs are to be assessed on the ordinary basis.

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Decision last updated: 14 March 2019