Diep v Tran (Costs) - [2020] VSC 171

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2020 01572

DE DIEP	Plaintiff
v
TI KE TRAN	First Defendant
and
KIM BA AU	Second Defendant
and
THI HA NGAN DANG	Third Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	9 April 2020
CASE MAY BE CITED AS:	Diep v Tran & Ors (Costs)
MEDIUM NEUTRAL CITATION:	[2020] VSC 171

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PROPERTY – Caveat – Costs – Application made for summary removal of caveat – Caveat withdrawn by defendant before application was determined – Caveat used as bargaining chip – Whether indemnity costs appropriate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The application was determined on the papers.
For the Defendant

HIS HONOUR:

The plaintiff applied for the summary removal of a caveat affecting a property at Keysborough that was subject to a contract of sale, on the basis that the net proceeds of the sale would be retained on trust by the plaintiff’s solicitor in an interest bearing controlled monies account. The application was said to be urgent, as the contract of sale was scheduled to settle on 31 March 2020.

On 3 February 2020, the first defendant (Mr Tran) lodged a caveat on the property, asserting a caveatable interest on the basis of an agreement dated 1 May 2019 between Mr Tran of the one part, and the second and third defendants of the other part. Notwithstanding that the solicitors for the plaintiff made several requests, Mr Tran did not produce a copy of this agreement to the plaintiff. It has never been sighted.

On 17 and 26 March 2020, the plaintiff’s solicitor wrote to the solicitors who had lodged the caveat on Mr Tran’s behalf, seeking the withdrawal of the caveat.

On 27 March 2020, Mr Burton of the plaintiff’s solicitors spoke with Mr Tran by telephone, seeking an urgent response to the plaintiff’s request that the caveat be removed. Mr Burton deposed that Mr Tran stated that he would not remove the caveat until there was ‘an offer on the table’ and that he ‘plays poker and was happy to spend a couple of hundred thousand dollars to make a point’. Following that conversation, the plaintiff’s solicitors again wrote to Mr Tran seeking the withdrawal of the caveat.

Then, on the same day, the solicitor who had lodged the caveat communicated to the plaintiff’s solicitor that he no longer acted for Mr Tran. Later that day, Mr Burton again spoke with Mr Tran and, during that conversation, suggested that the caveat be withdrawn, the settlement proceed and the net proceeds of the sale be placed in a trust account pending resolution of the dispute. Mr Tran responded with words to the effect of ‘you said you were going to make an offer, there’s no offer of money. Why would I remove my caveat if you are not going to give me money.’

There being no further…

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.

Continue reading Diep v Tran (Costs)

Details

AGLC: Diep v Tran (Costs) [2020] VSC 171
Case: [2020] VSC 171
Decision Date: 9 April 2020

CaseChat Overview and Summary

The case of Diep v Tran concerns a dispute over property, specifically regarding the costs associated with a caveat. The matter was heard in the Supreme Court of Victoria. The plaintiff, Diep, lodged a caveat over a property owned by the defendant, Tran, seeking to prevent the sale of the property. Tran applied to the court for the summary removal of the caveat, which the defendant had lodged without substantive justification. The defendant withdrew the caveat before the application was determined, with the caveat having been used as a bargaining chip in the proceedings.

The primary legal issue the court had to address was whether Tran was entitled to indemnity costs for the costs incurred due to the defendant's unjustified lodging of the caveat. The court considered whether the caveat was frivolous and vexatious, and if so, whether the defendant's conduct warranted an award of indemnity costs. The court examined the circumstances surrounding the lodging and withdrawal of the caveat and assessed whether the caveat had been used as a strategic tool in the proceedings.

In determining the matter, the court found that the caveat was indeed frivolous and vexatious, given that it was lodged without any substantive basis and subsequently withdrawn before the application was determined. The court acknowledged that the caveat had been used as a bargaining chip, which contributed to unnecessary legal costs for Tran. The court concluded that the defendant's conduct warranted the award of indemnity costs, reflecting the need to deter similar conduct in future cases. The court ordered that Tran be awarded costs on an indemnity basis.

The final orders of the court required the defendant to pay the plaintiff's costs of the application on an indemnity basis, reflecting the court's determination that the defendant's conduct was unjustified and had caused unnecessary legal expenses.

Orders