Ciara Enterprises Pty Ltd v Marsh
[2023] NSWSC 921
•04 August 2023
Supreme Court
New South Wales
Medium Neutral Citation: Ciara Enterprises Pty Ltd v Marsh [2023] NSWSC 921 Hearing dates: 4 August 2023 Date of orders: 4 August 2023 Decision date: 04 August 2023 Jurisdiction: Equity - Applications List Before: Kunc J Decision: Orders see paragraph [14]
Catchwords: CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Proceedings informally resolved — No utility in continuation — No order as to costs
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622
Category: Principal judgment Parties: Ciara Enterprises Pty Ltd (plaintiff/applicant)
Darren Wayne Marsh (first defendant/first respondent)
Melinda Kaye Fowler (aka Melinda Kay Marsh) (second defendant/second respondent)Representation: Counsel:
Solicitors:
J O’Connor (defendants)
Fairfax Lawyers (defendants)
File Number(s): 2022/126624 Publication restriction: Nil
EX TEMPORE Judgment (REVISED)
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These proceedings concern the sale of a property at Riverstone (the Property) by the defendants to the plaintiff. The procedural history, about which I have been informed by Mr O'Connor of Counsel, who appeared for the defendants, and by reference to the Court's file is somewhat curious.
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By amended summons the plaintiff sought orders including a declaration that the plaintiff was entitled to have the contract for sale of the Property specifically performed and an order that the defendants do so. The amended summons also sought an order for the separation of the two lots that comprise the Property.
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By reference to the affidavit of Mr Kenneth Fairfax, solicitor, sworn 28 June 2023 and read by Mr O'Connor today, it appears that the proceedings, which were listed to be heard by Richmond J, came before his Honour on 26 April 2023. On that occasion, the plaintiff appeared by its solicitor and Mr O'Connor appeared for the defendants. Richmond J made orders by consent vacating the hearing date fixed for 27 and 28 April 2023 and re-listing the matter for further directions on 25 May 2023 to allow time for the sale to be settled. No order formally disposing of the proceedings was made by his Honour on 26 April 2023 and no such order has yet been made.
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Putting the matter shortly, the defendants are doing everything they can, and have been doing everything they can, to settle the sale but have now been faced with what Mr O'Connor has described as “non co-operation” by the plaintiff.
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On 25 May 2023, Richmond J made directions for the filing of submissions on the question of costs and stood the matter over to 1 June 2023. On 1 June 2023, his Honour made variations to the timetable for submissions on costs and added this notation:
“4. The Court notes that the parties have informed this Court that the only outstanding issue in the proceedings is costs".
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The orders (as varied by Richmond J on 1 June 2023) for the filing of submissions on costs have not been complied with by the plaintiff. Instead, the plaintiff by its solicitor has filed a motion which is before me today in the Applications List seeking orders that the orders made by Richmond J on 1 June 2023 be vacated and an order that the costs of that motion be costs in the cause. Mr O'Connor has informed me that his understanding is that the plaintiff’s solicitor now asserts that there remains something in the cause other than the question of costs.
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The motion most recently filed by the plaintiff will be dismissed because it is both otiose and misconceived. The plaintiff has not complied with the directions as to the filing of submissions as to costs and the entire timetable ordered by his Honour is now in the past. Furthermore, in so far as those orders are concerned, as interlocutory orders they would only be vacated or varied on the application of a party if there was some change in circumstances. The affidavit in support filed by the solicitor for the plaintiff, Ms Lloyd, does not disclose any relevant change of circumstances that would warrant a variation to the interlocutory orders made by his Honour on 1 June, nor has there been any application for leave to appeal from those orders.
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Today there has been no appearance by the solicitor for the plaintiffs and I have been informed by Mr O'Connor that a notice of ceasing to act has been filed today by the plaintiff's solicitor. That notice has not yet reached the file but I accept what Mr O'Connor, as counsel, tells me. The motion before me today, for the reasons I have just given, will be dismissed. It was plainly misconceived and the appropriate order is that the defendants’ costs of that motion be paid by the plaintiff.
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This then leaves the question of what is to happen with the substantive proceedings. I am informed by Mr O'Connor that what amounts to the agreement of the parties that led them to inform Richmond J that the only issue remaining in the case was costs has never been recorded in writing. The defendants have simply taken the view from the start that they wish to comply with the contract for sale of the Property and have been doing their best to get on with doing that.
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In those circumstances, I see no utility in making the declaration sought in the amended summons or making any order for specific performance because that is precisely what the defendants have been trying to do and will apparently continue to try to do. It is also entirely unsatisfactory for the amended summons to remain on foot and for the defendants to have now been brought before the Court, I am informed by Mr O'Connor, on several occasions, relating to the question of costs and subsequent applications made on behalf of the plaintiff.
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Section 56 of the Civil Procedure Act 2005 (NSW) mandates the summary disposal of the proceedings and the drawing of a line under the litigation between the parties. It will then be a matter for the defendants as to what they may be entitled to do next about the contract for sale in the face of what I have been told is the plaintiff’s intransigence towards completing the contract.
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I will accordingly dismiss the amended summons. Mr O'Connor has informed me that at no stage have his clients sought the costs of the substantive proceedings. In any event, the parties plainly reached an agreement to resolve the proceedings before what was to be the final hearing before Richmond J. Given that agreement and the fact that the defendants do not seek their costs of the amended summons, the appropriate course is to apply the principles set out by McHugh J in Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 at 625 and make no order as to the costs of the substantive proceedings.
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Finally, noting the plaintiff's conduct since the vacation of the hearing date, I accept Mr O'Connor's submission that his clients are entitled to an order for their costs of the appearances on 25 May 2023, 1 June 2023, 13 July 2023 and today.
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The orders of the Court are:
Dismiss the plaintiff's notice of motion dated 15 June 2023.
Order the plaintiff to pay the defendants’ costs of the plaintiff's motion dated 15 June 2023.
Dismiss the amended summons.
Note that the Court makes no order as to costs of the amended summons.
Order the plaintiff to pay the defendants’ costs of the mentions on 25 May 2023, 1 June 2023, 13 July 2023 and of the hearing today.
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Decision last updated: 08 August 2023
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