French v Bremner (No 2) - [2019] NSWSC 1504

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: French v Bremner (No 2) [2019] NSWSC 1504
Hearing dates: 16 and 31 October 2019
Date of orders: 31 October 2019
Decision date: 31 October 2019
Jurisdiction: Equity - Commercial List
Before: Parker J
Decision:
See [46]

Catchwords:
COSTS — Party/Party —General rule that costs follow the event – second cross-defendant succeeded on first cross-claimant’s cross-claim but not on first cross-claim – relevant adjustment to general rule – costs referrable to relevant cross-claims where defendants commonly represented - Dimos v Willetts.

LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees for sale pursuant to Property Law Act 1958 (Vic), Part IV, s 225 – property purchased but not formally transferred – “land” per s 225 encompasses equitable interests held in title – trustee appointed for sale of estate and relevant interest held – stamp duty to be paid out of proceeds of sale.
CIVIL PROCEDURE — Stay of proceedings — Pending prospective appeal and removal of proceedings to High Court – no evidence of outcome of application for removal of proceedings – no evidence of prospective grounds for appeal – stay refused.
Legislation Cited: Civil Procedure Act 2005, s 100
Interpretation of Legislation Act 1984 (Vic), s 38
Property Law Act 1958 (Vic), Part IV, ss 222, 225
Cases Cited: Currabubula Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232
Dimos v Willetts (2000) 2 VR 170; [2000] VSCA 154
Category: Consequential orders
Parties: Andrew Boyd French (Plaintiff/First Cross-defendant)
Christopher Bremner (Defendant/Cross-claimant)
Representation:
Counsel:
A Harding (Defendant/Cross-claimant)

Solicitors:
Johnson Winter & Slattery (Defendant/Cross-claimant)
In person via phone:
A French (Plaintiff/First Cross-defendant)

File Number(s): 2014/101136
Publication restriction: Nil

Judgment – EX TEMPORE

Revised and reissued 11 November 2019

On 15 August I delivered my principal judgment in these proceedings: French v Bremner [2019] NSWSC 1033. I made orders dismissing Mr French's claim (the first cross-claim) against Dr Bremner. I also made orders dismissing Dr Bremner's cross-claim (the second cross-claim) against the second cross-defendant, Ms Bakey. It was not possible to make final orders on Dr Bremner's cross-claim against Mr French on that occasion and I directed that Dr Bremner, as the successful party, bring in proposed orders to reflect the conclusions I expressed in my judgment. I also asked for those orders to cover the costs of the proceedings.
The solicitors who acted for Mr French and Ms Bakey at the trial have now ceased to act for them. As a result, it took some time to arrange a hearing on the final form of the orders. Arrangements were made for the hearing to take place on 16 October, and both Mr French and Ms Bakey appeared. It emerged in argument that some further adjustment to the proposed orders was required, and the proceedings were adjourned until today. I excused Ms Bakey from appearing at today's hearing, as the only issue remaining that affects her is one of costs which 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.

Continue reading French v Bremner (No 2)

Details

AGLC: French v Bremner (No 2) [2019] NSWSC 1504
Case: [2019] NSWSC 1504
Decision Date: 31 October 2019

CaseChat Overview and Summary

The case of French v Bremner (No 2) involved multiple parties and disputes related to property law and costs. The second cross-defendant had succeeded on the first cross-claimant’s cross-claim but not on the first cross-claim. The court had to determine the relevant adjustment to the general rule that costs follow the event, particularly in relation to the cross-claims where the defendants were commonly represented. This was considered in the context of the precedent set by Dimos v Willetts.

The legal issues before the court included whether the costs should be referrable to the relevant cross-claims given the commonality of representation and the principle established in Dimos v Willetts. Additionally, the court had to consider the implications of statutory trust for sale under the Property Law Act 1958 (Vic), specifically whether the term "land" in s 225 encompasses equitable interests held in title, and if stamp duty should be paid out of the proceeds of sale when the property has been purchased but not formally transferred. Lastly, the court addressed the application for a stay of proceedings pending a prospective appeal and the removal of proceedings to the High Court, which was ultimately refused due to a lack of evidence regarding the outcome of the removal application and the prospective grounds for appeal.

In its reasoning, the court held that the general rule regarding costs should be adjusted to refer to the relevant cross-claims where the defendants were commonly represented, following the precedent in Dimos v Willetts. The court clarified that the term "land" in s 225 of the Property Law Act 1958 (Vic) does indeed encompass equitable interests held in title, and that stamp duty should be paid from the proceeds of sale. Regarding the stay of proceedings, the court found that there was insufficient evidence to support the application for a stay, given the absence of any evidence concerning the outcome of the removal application or the prospective grounds for appeal. Consequently, the stay was refused.

The final orders of the court were that the second cross-defendant was to bear the costs of the relevant cross-claims, in accordance with the adjusted general rule. The court also confirmed that stamp duty should be paid out of the proceeds of sale and that the stay of proceedings was refused.

Orders