D&M (Australia) Pty Ltd v Crouch Developments Pty Ltd [No 2]
[2008] WASC 281
•2 DECEMBER 2008
D&M (AUSTRALIA) PTY LTD -v- CROUCH DEVELOPMENTS PTY LTD [No 2] [2008] WASC 281
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 281 | |
| Case No: | CIV:1667/2008 | ON THE PAPERS | |
| Coram: | BEECH J | 1/12/08 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff to pay defendant's costs of the application | ||
| B | |||
| PDF Version |
| Parties: | D&M (AUSTRALIA) PTY LTD (ACN 102 773 722) CROUCH DEVELOPMENTS PTY LTD (ACN 008 897 676) |
Catchwords: | Costs Application for order that defendant be committed for contempt for failure to comply with order Defendant had complied or attempted to comply with order before contempt application was filed Contempt application dismissed Proper order as to costs Turns on own facts |
Legislation: | Nil |
Case References: | D&M (Australia) Pty Ltd v Crouch Developments Pty Ltd [2008] WASC 160 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CROUCH DEVELOPMENTS PTY LTD (ACN 008 897 676)
Defendant
Catchwords:
Costs - Application for order that defendant be committed for contempt for failure to comply with order - Defendant had complied or attempted to comply with order before contempt application was filed - Contempt application dismissed - Proper order as to costs - Turns on own facts
Legislation:
Nil
Result:
Plaintiff to pay defendant's costs of the application
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : No Appearance
Defendant : No Appearance
Solicitors:
Plaintiff : Lavan Legal
Defendant : Mossensons
Case(s) referred to in judgment(s):
D&M (Australia) Pty Ltd v Crouch Developments Pty Ltd [2008] WASC 160
(Page 3)
- BEECH J:
Introduction
1 On 18 April 2008 the defendant lodged a caveat over land owned by the plaintiff at 1 Dunedin Street, Mount Hawthorn (the property). By originating summons dated 12 June 2008, the plaintiff applied for an order removing the caveat. On 28 July 2008 I made a conditional order for the removal of the caveat. The reasons for the orders are explained in D&M (Australia) Pty Ltd v Crouch Developments Pty Ltd [2008] WASC 160.
2 My orders of 28 July 2008 relevantly included the following:
1. Within seven days of the plaintiff depositing into a joint interest bearing account to be set up in the names of the solicitors for the plaintiff and the defendant the sum of $535,000, pending the final determination of the arbitration brought by the defendant as claimant against the plaintiff as respondent, the defendant withdraw the caveat dated 18 April 2008, lodged in respect of [the property].
2. There be liberty to apply on 48 hours written notice generally and, further, to vary the sum in par 1 in the event that the defendant issues any further invoice to the plaintiff prior to the withdrawal of the caveat pursuant to par 1.
3 By chamber summons issued 20 October 2008 (the contempt application) the plaintiff sought an order that the defendant be punished for contempt for failure to comply with the order of 28 July 2008.
4 When the matter came before me on 18 November 2008, the plaintiff no longer pursued the application that the defendant be punished for contempt. That was because, by then, it was clear that the caveat had been withdrawn.
5 However, the plaintiff submitted that the defendant should pay the plaintiff's costs of the contempt application. In the course of submissions as to costs it emerged that there were factual disputes between the parties as to matters relevant to the costs discretion, not the subject of evidence, and that one affidavit before the court, sworn on behalf of the plaintiff, was materially inaccurate. In those circumstances, the plaintiff was given liberty to file further affidavits and submissions as to costs, with the question of costs to be dealt with on the papers. The plaintiff has invoked that liberty.
6 In my opinion, the plaintiff should pay the defendant's costs of the application. That is so for the reasons that follow.
(Page 4)
7 A central consideration in my exercise of the costs discretion is that by the time the plaintiff commenced the contempt application it was already aware that the defendant had lodged a withdrawal of caveat form.
8 The plaintiff submits that when regard is had to the conduct of the defendant since early October 2008, the defendant should be ordered to pay the plaintiff's costs of the contempt application. In that light it is convenient to set out a chronology of events.
Chronology of events
9 On 18 September 2008 the plaintiff deposited $535,000 into a trust account. Upon request from the defendant, a further sum of money was placed by the plaintiff into the trust account on 26 September 2008.
10 On 6 October 2008 the plaintiff's solicitors wrote to the defendant's solicitors demanding that the defendant execute a withdrawal of caveat and lodge it at Landgate immediately.
11 On 10 October 2008 the plaintiff's solicitor requested, by telephone, that the defendant's solicitor arrange for the caveat to be withdrawn.
12 On 14 October 2008 the plaintiff's solicitor again telephoned the defendant's solicitor, requesting that arrangements be made for the caveat to be withdrawn by 4.00 pm the following day.
13 At 3.54 pm on 15 October 2008 the defendant's solicitors, on behalf of the defendant, lodged at Landgate a withdrawal of caveat form in respect of the caveat. The withdrawal of caveat form was signed by one director of the defendant.
14 At 5.04 pm on 15 October 2008 the plaintiff's solicitors wrote to the defendant's solicitors stating that they had instructions to serve Mr and Mrs Crouch, the directors of the defendant, with an extracted copy of my order of 28 July 2008 and to commence contempt proceedings against them and against the defendant the following day.
15 At 7.43 pm on 15 October 2008 Mr and Mrs Crouch were served with a letter from the plaintiff's solicitors enclosing a copy of my orders of 28 July 2008 and stating that the plaintiff's solicitors had instructions to commence contempt proceedings the following day against the defendant and against Mr and Mrs Crouch personally.
16 The next day, 16 October 2008, at 9.19 am the defendant's solicitors sent a facsimile transmission to the plaintiff's solicitors attaching a copy
(Page 5)
- of the withdrawal of caveat dated 15 October 2008 which, the defendant's solicitors said, had been registered at Landgate on that date.
17 On 16 October 2008 at 2.41 pm the plaintiff's solicitors wrote in response to the defendant's solicitors' facsimile. The letter stated that the withdrawal of caveat had not been executed correctly and would be subject to a requisition notice from Landgate. The plaintiff's solicitors requested an undertaking from each director of the defendant by the close of business on 16 October 2008, that they would comply, within 24 hours, with all requisitions from Landgate in relation to the withdrawal of caveat. The letter concluded by stating that the plaintiff reserved all of its rights in relation to the defendant's failure to comply with the orders of 28 July 2008.
18 There was no response from the defendant's solicitors to that letter.
19 On 20 October 2008, the plaintiff commenced the contempt application.
20 Thereafter, there was, so far as the evidence before me reveals, no conferral between the solicitors for the parties.
21 The withdrawal of caveat was effected by Landgate on 31 October 2008. It appears that the defendant's solicitors did not communicate that fact to the plaintiff's solicitors.
22 By letter of 13 November 2008 the court requested that the defendant's solicitors write to it setting out the substance of the defendant's response to the plaintiff's application. In its response of 14 October 2008 the defendant's solicitors stated that the defendant had taken all necessary steps to withdraw the caveat. By letter of 17 November 2008 the defendant's solicitors stated that the withdrawal of caveat had been lodged on 15 October 2008, and provided a copy of the withdrawal of caveat. (Naturally, the defendant's solicitors copied this correspondence to the plaintiff's solicitors.)
The proper exercise of the costs discretion
23 The plaintiff's submissions as to costs emphasise that the defendant did not lodge the withdrawal of caveat until 15 October 2008, 19 days after the further sum had been deposited on 26 September 2008. Further, the plaintiff's submissions point to the absence of a response from the defendant to the plaintiff's solicitor's letter of 16 October 2008, and to the absence of any further communications between the parties.
(Page 6)
24 In some respects, these aspects of the conduct of the defendant and the defendant's solicitors were less than ideal. No explanation for the delay by the defendant in complying with the order of 28 July 2008 has been provided. However, that delay was a delay of 12 days. What, to my mind, is of most significance is that by the time the plaintiff commenced the contempt proceedings the defendant had, to the plaintiff's knowledge, lodged a withdrawal of caveat form. I will return to this point. Also, I accept that it would have been preferable had the defendant's solicitors communicated more with the plaintiff's solicitors, for example by advising that Landgate had processed the withdrawal of caveat by 31 October 2008.
25 However, the conduct of the defendant is, in my opinion, outweighed by the consideration to which I have already referred. The defendant lodged the withdrawal of caveat form on 15 October 2008. The plaintiff's solicitors were advised of this on 16 October 2008. In the face of that knowledge, the plaintiff commenced the contempt application on 20 October 2008.
26 There is no direct evidence that seeks to explain or justify the commencement of the contempt proceedings after the lodgement of the withdrawal of caveat form. The inference is open that the plaintiff commenced the contempt proceedings because of, and in the light of, the absence of a response to the plaintiff's solicitor's letter of 16 October 2008 requesting an undertaking that each director of the defendant would comply with all requisitions from Landgate in relation to the withdrawal of the caveat. In my opinion, the absence of a response to the request for such an undertaking does not provide a satisfactory justification for the commencement of the contempt application. It is true that the withdrawal of caveat form that had been lodged by the defendant was signed by only one director. However, it would be very difficult for the plaintiff to contend that it should be inferred that the defendant deliberately lodged a withdrawal of caveat form that had been imperfectly executed. Counsel for the plaintiff disavowed any such contention. The position was, therefore, that the defendant had complied, or at least had attempted to comply, with the order made on 28 July 2008. Any complaint in relation to a requisition from Landgate would appropriately have been made, if at all, only if and when Landgate issued requisitions and officers of the defendant refused to comply with such requisitions.
27 For the reasons I have given, I would order that the plaintiff pay the defendant's costs of the application.
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