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

1. 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.

2. 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

1. 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.

2. 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 made for removal of the caveat.

3. This matter is one of several involving a series of absolute caveats that the plaintiff has lodged against various properties owned by members of the plaintiff association.

4. In November 2021, the first and second defendants caused the third defendant to issue a notice to the plaintiff association pursuant to s 138B of the TLA.  That notice required the plaintiff to obtain an order of this court within 21 days extending the caveat, failing which it would lapse.

5. In response, on 1 December 2021, the plaintiff brought this proceeding on an urgent basis seeking an order to extend the caveat.  Under the statutory regime, had the plaintiff not brought the application, its caveat would have lapsed.   

6. On 6 December 2022, I granted the extension on an interim basis and made orders for the further conduct of the matter.

7. On 12 January 2022, I handed down judgment in the matter of Paddinson.  On the basis of materials before me, it is apparent that the facts in that matter are materially identical to the matter now before me.

8. In Paddinson, I found that the caveator's (ie the plaintiff's) claim supporting the caveat may have substance and that the balance of convenience favoured the maintenance of the caveat.  I accordingly ordered that the caveat be extended until further order of the court. I also ordered that the first and second defendants pay the plaintiff's costs, to be taxed if not agreed.

9. On 17 January 2022, the second defendant in this action advised the court, in substance, that the defendants did not intend to pursue their defence of the application.  The court has not been provided with anything to suggest there is any material difference between this caveat and the caveat the subject of the decision in Paddinson.  The orders of 18 January 2022 were made in that context.

Submissions as to costs

1. The plaintiff submits that the indefinite extension of their absolute caveat, coupled with the decision in Paddinson, identifies the plaintiff as the successful party.  The general rule as to costs should apply.  That is, that the unsuccessful party should pay the successful party's costs.

2. The plaintiff in its submissions seeks an order that costs be fixed at $9,754.18.  The plaintiff arrived at this figure on the basis of the following table lifted from its submissions.

   Professional Fees

Item No	Scale Item	Date	Particulars	Time	Amount Claimed (incl. GST)
1.	2.4 - PD 4.7.1.1	Various	Special appointment – including drafting the application, conferral, preparation, submissions, appearance, and reporting	SP – 4.5	$2,227.00
2.	1(a)	Various	Drafting the originating summons, affidavit in support and Form 1, attendance to serve and file documents, communication with the Court, preparation of affidavit of service, review of Court Orders, reporting to Plaintiff and advising Third Defendant of Orders	SP – 6.5	$3,217.50
3.	27(b)	13/01/2022 - 17/01/2022	Informal conferral between parties – exchange of Letter and emails between parties	SP – 0.8	$396.00
4.	11(d)	18/01/2022	Attendance at directions hearing, including preparation and taking instructions from Plaintiff's representative prior to directions hearing	C – 0.8	$360.80
5.	11(a)	20/01/2022- 25/01/2022	Preparation of submissions in respect of costs including quantum of costs	SP – 3.5	$1,732.50
Sub-total professional fees:					$7,933.80

Disbursements

Item No	Date	Particulars	Amount Claimed (incl. GST)
6	01/12/2021	Supreme Court filing fee (no GST)	$1,643.00
7	Various	General – searches, office costs and ancillaries	$98.00
8	Various	Copying (479 pages)	$79.04
Sub-total disbursements:			$1,820.38

Sub-total professional fees (incl GST) $ 7,933.80
Sub-total disbursements (incl GST)             $ 1,820.38
Total costs claimed:   $ 9,754.18

1. The defendants resist the plaintiff's application for costs.  They submit that the only reason they are not pursuing the matter at this stage is the first defendant's declining health.

2. The defendants also contend that the costs claimed by the plaintiff are 'exorbitant' for the work done.  The defendants argue that the correspondence they received from the plaintiff was limited to 'a couple of very short voice calls, and a couple of emails'.[2]

   [2] Defendants' Submissions in Support for an Order for Costs (9 February 2022).

3. Moreover, the defendants submit that 'excluding any fixed court costs relating to the lodgement of required documents, this appears to be a simple 'cut and paste' from the previous case against a Mr Paddinson with some minor name and title changes'.[3]  That is, the defendants contend that no significant expense could have been incurred by the plaintiff other than the costs of filing and appearances because the papers filed on behalf of the plaintiff were materially the same as those filed by the plaintiff in the Paddinson matter.

   [3] Defendants' Submissions in Support for an Order for Costs (9 February 2022).

Decision

1. Generally speaking, if a matter concludes without having been the subject a substantive hearing, a court 'cannot try a hypothetical action between the parties' to determine which of the parties was the 'successful' party for the purpose of costs.  If a matter is not heard, the common course of action will be to make no order as to costs: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin.[4]

   [4] Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 [6].

2. 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].

3. 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. 

4. I accept the plaintiff's submissions that it is in substance the successful party for the purposes of this costs determination.

5. 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.

6. 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.

7. 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.

8. 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].

9. 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.

Quantum

1. I turn now to the quantum of the recoverable costs.

2. I am of the view that the amount sought by the plaintiff is excessive in all the circumstances.  I have had the opportunity to compare the documents filed in all of the matters involving the plaintiff's caveats and I am in the position to observe that they are largely, very similar.

3. Considering that the plaintiff will recover their costs in Paddinson on a party and party basis, I am persuaded by the defendants' submission that fixing costs at nearly $10,000 poses a risk of double recovery.  As such, the reasonable costs to be covered by the plaintiff in this matter are:

   $1,643.00 - Supreme Court filing fee; and

   $360.80 - Counsel fees for the 18 January 2022 hearing; and

   $360.80 - Counsel fees for the 6 December 2022 hearing. 

Order

1. For these reasons, the first and second defendants should pay the plaintiff's costs, fixed in the sum of $2,364.60.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

IS

Associate to the Honourable Justice Solomon

24 MARCH 2022