Coco C'Bay Association (Inc). v Hudson - [2022] WASC 97

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   COCO C'BAY ASSOCIATION (INC). -v- HUDSON [2022] WASC 97
CORAM:   SOLOMON J
HEARD:   ON THE PAPERS
DELIVERED          :   24 MARCH 2022
PUBLISHED           :   24 MARCH 2022
FILE NO/S:   CIV 2296 of 2021
BETWEEN:   COCO C'BAY ASSOCIATION (INC).
Plaintiff

AND

BARBARA WINIFRED HUDSON
First Defendant

IAN GEOFFREY HUDSON
Second Defendant

THE REGISTRAR OF TITLES
Third Defendant

Catchwords:

Costs - Whether the general rule should apply - Whether defendant should pay the plaintiff's costs - Quantum of costs sought

Legislation:

Nil

Result:

The first and second defendants pay the plaintiff's costs of the application fixed at $2,364.60

Category: B

Representation:

Counsel:

Plaintiff	:	G Nofal
First Defendant	:	In person
Second Defendant	:	In person
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	HHG Legal Group
First Defendant	:	In person
Second Defendant	:	In person
Third Defendant	:	No appearance

Case(s) referred to in decision(s):

Coco C'Bay Association (Inc) v Paddinson [2022] WASC 5
Latoudis v Casey (1990) 170 CLR 534
Metsikas v Quirk [2010] NSWSC 756
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622

SOLOMON J:

Introduction

This is the plaintiff's application for costs. On 18 January 2022, I made orders in this matter pursuant to s 138C(2)(a) of the Transfer of Land Act 1893 (WA) (TLA), extending the caveat the subject of the proceeding until further order of the court. The plaintiff sought the costs of its application. Orders were made for the parties to make submissions on the question of costs, including quantum, to be decided on the papers.
For the reasons that follow, I have concluded that in substance the plaintiff was the successful party, and that the general rule as to costs should apply. However, I find that the plaintiff's proposed quantum of $9,754.18 is excessive in the circumstances. I find that the first and second defendants (defendants) should pay the plaintiff's costs to be fixed in the sum of $2,364.60.

Background

In 2004, the defendants purchased a residential property in Marigold Lane, Falcon. On 22 November 2004, the plaintiff association and the defendants entered into a deed titled 'Purchaser Covenant'. In Coco C'Bay Association (Inc) v Paddinson, (Paddinson)[1] I described the nature of the plaintiff association and the arrangements with its members who owned residential homes in the vicinity including the Purchaser Covenant. In accordance with those arrangements, by the Purchaser Covenant, the defendants authorised the plaintiff to lodge an absolute caveat against their property.
[1] Coco C'Bay Association (Inc) v Paddinson [2022] WASC 5.
In mid-2020, several members of the plaintiff association engaged lawyers to seek removal of the caveats by the plaintiff. The members were identified in a letter from Petherick Cottrell Lawyers dated 28 October 2020, which was annexed to the Affidavit of Petrus W P Vredenbregt, sworn 1 December 2021 in this proceeding. The defendants were identified in that letter as members on behalf of whom the request was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] WASC 97
Decision Date

CaseChat Overview and Summary

Coco C'Bay Association (Inc.) was the plaintiff and sought relief against Hudson, who was the defendant. The dispute involved a caveat over land that the plaintiff sought to remove. The case was heard in the Supreme Court of New South Wales. The central legal issue was whether the plaintiff was entitled to costs after the defendant decided not to pursue their opposition to the removal of the caveat.

The court examined the circumstances under which a party may be awarded costs, even if the matter was not fully contested. The court referred to previous judgments that emphasised the compensatory nature of cost orders and the principle that the successful party should be reimbursed for litigation costs. The court considered the reasonable conduct of both parties and the fact that the plaintiff had no choice but to commence proceedings due to the notice under s 138B. The court noted that the caveat raised a legitimate question, but it was reasonable for the plaintiff to seek the relief they obtained.

Based on these principles, the court concluded that the plaintiff was the successful party in substance. It found that the general rule on costs should apply, meaning that the defendant should pay the plaintiff's costs. The court highlighted the importance of compensating the successful party for litigation costs incurred.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

However, in that same judgment, McHugh J observed that: In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action...in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried.[5][5] Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [7]. On the basis of the materials before the court, there can be no doubt that the plaintiff is in substance the successful party. The plaintiff has obtained the relief it sought and, as noted, there is nothing before the court that distinguishes this matter from Paddinson. I accept the plaintiff's submissions that it is in substance the successful party for the purposes of this costs determination. I do wish to note that the first and second defendants in this matter are self‑represented litigants who have at all times conducted themselves reasonably. It is also appropriate to note that the nature and breadth of the caveat did give rise to a legitimate question to be determined by the court, and it was reasonable for the defendants to seek to test their contractual rights. However, the circumstances of this particular matter are, that upon service of the notice under s 138B, the plaintiff had no alternative but to commence proceedings and incur the necessary costs. The defendants then elected not to pursue their opposition to the application. In Latoudis v Casey, McHugh J made the following observation:An order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees and out‑of‑pocket expenses reasonably incurred in connection with the litigation: Kelly v Noumenon Pty Ltd (1988) 47 SASR 182 at 184. The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory. Thus, in civil proceedings an order may, and usually will, be made even though the unsuccessful party has nearly succeeded or has acted reasonably in commencing the proceedings.[6][6] Latoudis v Casey (1990) 170 CLR 534, 566 - 567. In Metsikas v Quirk, Brereton J observed:It cannot be said that in that respect the proceedings were hopeless or doomed to failure. That said, the mere fact that proceedings are properly and reasonably brought is insufficient reason for depriving an otherwise ultimately successful defendant of its costs. Many proceedings are properly brought and prosecuted to judgment, but fail; in such cases the ordinary result is that the unsuccessful plaintiff must pay the successful defendant's costs.[7][7] Metsikas v Quirk [2010] NSWSC 756 [7]. Having regard to those principles, and to my finding that the plaintiff must be considered the successful party in the proceedings, I have concluded that the general rule as to costs ought to apply. The defendants should pay the plaintiff's costs.