Coleman v Hart-Hughes (No 2) - [2017] NSWSC 902

Supreme Court

New South Wales

Medium Neutral Citation: Coleman v Hart-Hughes (No 2) [2017] NSWSC 902
Hearing dates: On the papers
Date of orders: 06 July 2017
Decision date: 06 July 2017
Jurisdiction: Equity
Before: Darke J
Decision:
First defendant ordered to pay plaintiff’s costs of the proceedings between them, with such costs to be secured by the plaintiff’s charge. No orders as to costs of the proceedings between the plaintiff and the second and third defendants.

Catchwords: COSTS – multiple defendants – where plaintiff obtained declaration of equitable charge over first defendant’s land – where other defendants had registered mortgages over land – where unsuccessful attempts to settle proceedings between parties – appropriate for first defendant to pay plaintiff’s costs as between those parties – appropriate for those costs to be secured by plaintiff’s equitable charge – no order for costs as between plaintiff and second and third defendants
Legislation Cited: Evidence Act 1995 (NSW), s 131(2)(h)
Uniform Civil Procedure Rules 2005 (NSW), r 42.25
Cases Cited: Aged Care Services Ltd v Macedonian Aged Care & Accommodation Ltd [2012] NSWSC 641
Coleman v Hart-Hughes [2017] NSWSC 656
Overton Investments Pty Ltd v Cuzeno RVM Pty Ltd [2003] NSWCA 27
Waco Kwikform Ltd v Jabbour (2010) 16 BPR 30,727; [2010] NSWSC 1379
Category: Costs
Parties: James Robert Coleman (Plaintiff)
Gai Hart-Hughes (First Defendant)
First Mortgage Managed Investments Pty Ltd (Second Defendant)
First Mortgage Investments Pty Ltd (Third Defendant)
VMC Consulting Pty Ltd (Fourth Defendant)
Representation:
Counsel:
Mr A Ogborne (Plaintiff)
In person (First Defendant)
Mr R Lewin (solicitor) (Second and Third Defendants)
Solicitors:
Bruce and Stewart Lawyers (Plaintiff)
Gadens Lawyers (Second and Third Defendants)

File Number(s): 2016/122345
Publication restriction: None

Judgment

Introduction

Judgment was delivered in this matter on 26 May 2017 (see Coleman v Hart-Hughes [2017] NSWSC 656). The Court granted declaratory relief to the plaintiff to the effect that by Deed entered into on 4 July 2012, the first defendant granted an equitable charge in favour of the plaintiff over certain land at Bangalow, and that the charge secures repayment of an amount in excess of $880,000. The Court declined the plaintiff’s claim for an injunction to restrain the first defendant from registering any plan of sub-division of the land without first obtaining the plaintiff’s consent.
The question of costs remains for determination. This controversy involves not only the plaintiff and the first defendant, but also the second and third defendants who are the holders of registered mortgages over the land.
The plaintiff seeks orders for costs against both the first defendant and the second defendant. The first defendant resists that order, and says that she should not have to pay any, or at least some parts of, the plaintiff’s costs. The second and third defendants seek an order that the plaintiff pay their costs of the proceedings from 28 April 2016.
Before dealing with the arguments advanced by the parties, it is convenient to set out a summary of the salient facts. The communications from…

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: [2017] NSWSC 902
Decision Date: 06 July 2017

CaseChat Overview and Summary

In Coleman v Hart-Hughes (No 2), the plaintiff, Coleman, sought a declaration that an equitable charge existed over certain land owned by the first defendant, Hart-Hughes. The second and third defendants held registered mortgages over the same property. The dispute was heard in the Supreme Court of New South Wales. The plaintiff aimed to establish the priority of the equitable charge over the registered mortgages. The case involved complex issues concerning property law, equitable charges, and the resolution of costs between multiple parties in litigation.

The court was tasked with determining whether it was appropriate for the first defendant, Hart-Hughes, to bear the plaintiff's costs for the proceedings between them, and if so, whether these costs could be secured by the equitable charge declared over Hart-Hughes' land. Additionally, the court had to decide whether it was appropriate to order costs between the plaintiff and the second and third defendants. The court needed to balance the principles of equity and the relevant legal precedents concerning costs in multi-party litigation.

The court held that it was appropriate for the first defendant, Hart-Hughes, to bear the plaintiff's costs in relation to the proceedings between them. The court reasoned that the equitable charge established over Hart-Hughes' land provided a suitable mechanism for securing these costs. However, the court found that there were no grounds for ordering costs between the plaintiff and the second and third defendants, as the litigation did not result in a clear advantage or benefit to any party. The court's decision recognised the equitable principles involved and the unsuccessful attempts at settlement between the parties.

The final orders of the court were that the first defendant, Hart-Hughes, was to pay the plaintiff's costs in relation to the proceedings between them, and these costs were to be secured by the equitable charge over Hart-Hughes' land. No orders for costs were made between the plaintiff and the second and third defendants.

Orders