Happy Homes Building Group Pty Ltd v Registrar of Titles (No. 2)
[2020] VCC 516
•1 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-18-05827
| HAPPY HOMES BUILDING GROUP PTY LTD | Plaintiff |
| v | |
| REGISTRAR OF TITLES and BASS COAST SHIRE COUNCIL and MATTHEW PETER SIMPSON and CHERIE ELIZABETH HUSSEY and AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD and COMMONWEALTH BANK OF AUSTRALIA | First Defendant Second Defendant Third Defendant Fourth Defendant Fifth Defendant Sixth Defendant |
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JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | The plaintiff and the second, third, and fourth defendants filed written submissions on 28 April 2020. | |
DATE OF RULING: | 1 May 2020 | |
CASE MAY BE CITED AS: | Happy Homes Building Group Pty Ltd v Registrar of Titles & Ors (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 516 | |
R U L I N G
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The Director of the plaintiff, Ms L Williamson, appeared on behalf of the plaintiff | |
| For the First Defendant For the Second Defendant For the Third Defendant For the Fourth Defendant For the Fifth Defendant For the Sixth Defendant | Mr W Drent Ms S Worsfield Ms S Worsfield Mr T Jeffrie Mr T Jeffrie | CLH Lawyers Harris Carlson Lawyers Harris Carlson Lawyers Gadens Lawyers Gadens Lawyers |
HIS HONOUR:
Background
1 On 20 April 2020, I handed down reasons for judgment in this matter (“the principal reasons”). I directed that the parties try to agree upon orders about costs and other consequential orders giving effect to my judgment. In the absence of agreement, the parties were to file written submissions by 4:00pm on 28 April 2020 addressing the question of costs and the form of final orders. These reasons assume familiarity with the principal reasons and adopt the same terminology.
Plaintiff’s submissions
2 Consistent with the previously filed material and the oral submissions made at the hearing, the plaintiff’s submissions were a little difficult to understand. Ms Williamson filed the submissions on behalf of the plaintiff after obtaining leave from the court for that purpose. In a separate email to the court, Ms Williamson indicated that she did not agree with the orders proposed by the defendants.
3 I gleaned the following points from the plaintiff’s submissions:
(a) the plaintiff did not willingly join most of the defendants to the proceeding and should not be responsible for their costs;
(b) decisions embodied in the principal reasons were factually incorrect and improper. The court did not properly address issues raised by the plaintiff and I, as the judge who heard the applications, should consider recusing myself;
(c) the court should reserve the rights of the plaintiff so that it can appeal;
(d) the defendants should provide security within 14 days to cover the damages payable to the plaintiff on its claim. If the defendants fail to do so, there should be summary judgment for the plaintiff;
(e) the court placed unreasonable time limitations on the plaintiff to make submissions and the plaintiff wants further time to seek advice and submit more material.
Consideration
4 The plaintiff commenced the proceeding on 31 December 2018. The court granted a temporary restraining order against the first defendant prohibiting the Registrar of Titles from registering any transfer of ownership or mortgage or other dealing regarding the Property. On 1 February 2019, I referred the plaintiff to the Victorian Bar Pro Bono Barristers Court Referral Scheme. The aim of the referral was to assist the plaintiff with advice about its legal position regarding Bass Council and the Property and, if appropriate, drafting a claim against Bass Council and/or preparing further affidavit material. I continued the restraining order against the first defendant until 4:00pm on 5 April 2019, adjourned the matter to that day and directed the plaintiff to serve a copy of my order on the CBA, ANZ, Bass Council, Hussey, and Simpson. At the hearing on 5 April 2019, Judge Marks joined those parties as defendants to the proceeding pursuant to rule 9.06(b).
5 Each of the joined defendants – the CBA, ANZ, Hussey, and Simpson – was affected by the plaintiff’s claim against the Registrar of Titles. Judge Marks was satisfied that joinder was appropriate under rule 9.06(b). Whether or not the plaintiff sought to join them is irrelevant. After this joinder, the plaintiff persisted with its claim. There is no sufficient reason why the plaintiff should not be responsible for the costs of those defendants in connection with these applications.
6 To the extent that the plaintiff disagreed with the decisions made in relation to the various applications before me, it can seek leave to appeal. If that leave is granted, the plaintiff can seek to challenge the factual and legal findings in my judgment. There is no basis upon which I should recuse myself from further hearing this matter and finalising these reasons for judgment.
7 At the hearing before me, the plaintiff did not issue a summons seeking orders that the defendants provide security in relation to its claims. Accordingly, the plaintiff should not be able to raise such an issue now. Even if there had been an earlier application, it would in all probability have failed because there was no proper basis upon which to order the defendants to provide security for the plaintiff’s claim.
8 As to time limitations, the principal reasons specified a time by which the parties were to file submissions about costs and the form of final orders if they could not agree amongst themselves. The same deadline applied to all parties – the plaintiff was not singled out or given some lesser period of time. Notwithstanding the assistance Ms Williamson had at the hearing from Messrs Balogh and Nixon, her association with another experienced self-represented litigant (“SRL”), Mr Collis,[1] and the extensive dealings with the SRL coordinators in this Court whose job it is to help SRLs, Ms Williamson did not at any time after the delivery of the principal reasons apply for an extension of time to file submissions.
Defendant’s submissions
[1]Mr Collis is an SRL who has conducted litigation in this Court and currently has at least one matter on appeal to the Court of Appeal.
9 The defendants generally contended that I should make orders for security in default of which the plaintiff’s case should be dismissed. They also claimed costs.
10 I have ordered security up to and including mediation or judicial resolution conference. If the matter does not settle at mediation or judicial resolution conference, the second, third, and fourth defendants can apply for further security at that time. One reason for providing liberty to apply in the final orders is to facilitate such an application.
Consideration
11 In relation to costs, there are some well accepted legal principles with respect to the court’s powers:
(a) the only immutable rule in relation to costs is that there are no immutable rules;
(b) the award of costs is within the discretion of the court;
(c) the discretion must be exercised judicially. It cannot be exercised arbitrarily or capriciously. Nor can it be exercised on grounds unconnected with the litigation or the circumstances leading up to the litigation;
(d) costs are compensatory in the sense they are awarded to indemnify the successful party against the expense to which it has been put by reason of the legal proceedings. The aim of a costs order is not to punish the unsuccessful party;
(e) as a general rule, costs should follow the event with the result that, in the absence of special circumstances, a successful party should obtain its costs of the proceeding even if it fails to establish all heads of claim;
12 Here, it is appropriate for costs to follow the event. There was no conduct by any defendant which would justify depriving a successful defendant of the costs which would otherwise be payable.
13 The second to fourth defendants each sought orders that if the plaintiff did not provide security within the time specified by the court, the proceeding be dismissed against them and the plaintiff pay the defendants’ costs.
14 In paragraph 149 of the principal reasons, I said that, in the first instance, the proceedings should be stayed if the plaintiff failed to provide security. At the time, it was my view that an order for a stay, rather than dismissal, was appropriate.
15 Having read the defendants’ submissions, I appreciate the force of their arguments that:
(a) they have sought security from the plaintiff for a lengthy period without success;
(b) there is no likelihood of the plaintiff paying the defendants’ costs of the proceeding if the plaintiff’s claim is dismissed;
(c) the plaintiff’s claim is weak;
(d) Simpson and Hussey settled their purchase of the Property in October 2018 but are still not registered on title and cannot be registered until the claim is dismissed.
(e) the defendants will suffer yet more delay and incur more irrecoverable cost if they are required to wait additional time and make another application to the court
16 The defendants’ arguments were soundly based in fact and were consistent with legal principle. Accordingly, I have altered my opinion and consider I should exercise the court’s power pursuant to Order 62.04 of the Rules. That provision authorises the court to dismiss a plaintiff’s claim where the plaintiff fails to give security in accordance with an order made by the court
17 For the reasons set out, I make the following orders:
1. By 4:00pm on 2 June 2020, the plaintiff is to provide security in the sum of $16,000 for the second defendant’s costs of the proceeding up to and including mediation. The plaintiff is to provide the security by a bank guarantee, cash payment, or in some other form acceptable to the second defendant.
2. The proceeding against the second defendant be stayed until such security is paid.
3. If the plaintiff fails to provide security by 4:00pm on 2 June 2020:
(a) the plaintiff’s proceeding will stand dismissed;
(b) there will be judgment for the second defendant; and
(c) the plaintiff is to pay the second defendant’s costs of the proceeding, including the costs of this application and any reserved costs, such costs to be taxed on a standard basis in default of agreement.
4. By 4:00pm on 2 June 2020, the plaintiff is to provide security in the sum of $16,000 for the third and fourth defendants’ costs of the proceeding up to and including mediation. The plaintiff is to provide the security by a bank guarantee, cash payment, or in some other form acceptable to the third and fourth defendants.
5. The proceeding against the third and fourth defendants be stayed until such security is paid.
6. If the plaintiff fails to provide security by 4:00pm on 2 June 2020:
(a) the plaintiff’s proceeding will stand dismissed;
(b) there will be judgment for the third and fourth defendants; and
(c) the plaintiff is to pay the third and fourth defendants’ costs of the proceeding, including the costs of this application and any reserved costs, such costs to be taxed on a standard basis in default of agreement.
7. There be summary judgment in favour of the fifth and sixth defendants and the plaintiff’s proceeding against them be dismissed.
8. The plaintiff pay the fifth and sixth defendants’ costs of the proceeding, including the costs of this application and any reserved costs, such costs to be taxed on a standard basis in default of agreement.
9. Upon the dismissal of the plaintiff’s proceeding against the third and fourth defendants, I direct that the first defendant:
(a) remove the notice of action in dealing number AR599498X over the land in Certificate of Title Volume 08221 Folio 469, being the property located at 22 Dudley Street, South Dudley, in the State of Victoria; and
(b) register the transfer of the said property in dealing number AR618088T to the third and fourth defendants as the purchasers and new registered proprietors of that property.
10.Reserve liberty to the parties to apply by email to the Commercial Division Registry ([email protected]) for further directions upon giving reasonable notice to all other parties.
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