Harstedt Pty Ltd v Lopez & Ors (No 2)
[2018] VCC 1604
•5 October 2018
| THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-02818
| HARSTEDT PTY LTD | Plaintiff |
| v | |
| JOSE MARIA LOPEZ | First Defendant |
| and | |
| ANNA LOPEZ | Second Defendant |
| and | |
| REGISTRAR OF TITLES VICTORIA | Third Defendant |
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JUDGE:HIS HONOUR JUDGE COSGRAVE
WHERE HELD: Melbourne
DATE OF HEARING: Written submissions and material filed by the parties on or about 25 September and 27 September 2018 respectively.
DATE OF JUDGMENT: 5 October 2018
CASE MAY BE CITED AS: Harstedt Pty Ltd v Lopez & Ors (No 2)
MEDIUM NEUTRAL CITATION: [2018] VCC 1604
REASONS FOR JUDGMENT
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Subject: COSTS
Catchwords: COSTS – Application for costs – Whether or not court should allow costs of both senior and junior counsel – Whether proceeding so complex as to justify briefing of senior counsel – Where legal principles not subject of substantive dispute
Legislation Cited: Property Law Act 1958 (Vic)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Robertson, QC Ms R Campbell | Katherine Moorhouse Perks M |
| For the Second Defendant | Mr T R Messer | Wightons Lawyers |
HIS HONOUR:
Background
1 On 31 August 2018, I handed down reasons for judgment in this proceeding in which I found in favour of the plaintiff, Harstedt (“the principal reasons”). On that day, Harstedt’s counsel handed up proposed minutes of order which sought to give effect to the judgment. Because at that time, neither party, and in particular the second defendant, Mrs Lopez, had not had the opportunity to read the reasons for judgment and because she had not seen the proposed orders before receiving them in Court, I ordered that the proceeding be adjourned to a later date so that the parties could more fully address the issues of final orders and costs. These reasons assume familiarity with the principal reasons and adopt the same terminology.
2 In the principal reasons, I found that the transfer of the property signed by Mr and Mrs Lopez in May 2017 pursuant to which Mrs Lopez became the sole registered proprietor of the property, was caught by section 172 of the Property Law Act1958 (Vic) and should be set aside in the interests of creditors.
Chronology
3 On 14 September 2018, Harstedt provided to Mrs Lopez’s solicitors an amended version of the proposed final orders for which Harstedt contended. Harstedt said that the changes to the form of order handed up in Court on 31 August were made to better give effect to the reasons for judgment.
4 On 18 September 2018, Harstedt’s solicitor emailed both defendants inquiring whether they intended to file any affidavit material or submissions with respect to the final orders to be made in the proceeding. Presumably this was done due to minute 4 of the orders I made on 31 August 2018 in which I directed that the defendants file and serve by 4.00pm on 14 September 2018 any affidavit material or submissions relating to the orders which they sought in connection with the proceeding. I then provided for the plaintiff to file and serve any affidavit material and submissions in reply by 4.00pm on 25 September 2018.
5 On 19 September 2018, Mrs Lopez’s solicitors responded to Harstedt’s solicitor. Apart from disagreeing with Harstedt on the question of costs, Mrs Lopez’s solicitors advised that the first defendant was in Spain and had no scheduled return date. As a result, it was suggested that the proposed orders might need to be modified in order to deal with this practical problem. The solicitors expressed their willingness to write to the first defendant to advise him of the necessary conveyancing requirements and to urge him to instruct a solicitor or conveyancer to represent him.
6 Having been informed that the first defendant was currently in Spain and was not scheduled to return to Australia, Harstedt’s solicitor on 21 September 2018 made inquiries of the Land Registry as to an alternate method to obtain the requisite electronic conveyancing authority now required by the Registrar of Land Titles. Harstedt’s solicitor, Katherine Moorhouse-Perks, has sworn that she spoke to Khoi La of the advice section of Land Registry and that he confirmed that the Land Registry would accept for registration a paper transfer signed by the Registrar of the County Court on behalf of the first defendant. Mr La apparently commented that Land Registry received similar orders in Family Court matters where one party to the marriage had left Australia and had no plans to return.
7 By email on 25 September 2018, Mrs Lopez’s solicitors advised Harstedt that, subject to matters raised in its submissions, she did not otherwise object to the form of final orders sought by Harstedt. In those circumstances, it seems to me that the only issue between the parties is the question of costs. In this case, where the first defendant, Mr Lopez, is in Spain and has no scheduled return date to Australia, it seems to me appropriate that a Registrar of the County Court be authorised to sign a transfer of the property on his behalf. Such a course of action saves time and money, is consistent with past practice and is acceptable to the Registrar of Land Titles.
Costs
8 With respect to the issue of costs, the point of contention is whether or not the court should allow Harstedt the cost of both senior and junior counsel in this proceeding. In its submissions filed on 25 September 2018, Harstedt contended that the proceeding raised complex questions of law and fact in an unusual area. As a result, it was said that these complexities warranted briefing both senior and junior counsel. Harstedt contended that it acted economically and only briefed both counsel in respect of those aspects of the matter where it was appropriate.
9 In her submissions filed on 27 September 2018, Mrs Lopez made several points:
(a)The proceeding was not so complex or unusual as to justify the briefing of senior counsel.
(b)Section 172 of the Property Law Act is a longstanding statutory provision with a lengthy history and is governed by well-established legal principles. These principles have been applied in numerous cases over many years in a number of jurisdictions.
(c)The factual dispute was not complex.
10 Harstedt called a single witness who gave brief evidence. The oral evidence adduced by Mrs Lopez was not particularly extensive or complicated and the whole of the oral evidence was completed during the morning of the second day of trial.
11 In my view, there is substance in the submissions made by Mrs Lopez. I consider that the bulk of the factual material was either agreed or not seriously contested. The legal principles to be applied were similarly not the subject of any substantive dispute. The main issue was the extent to which the relevant principles applied to the factual circumstances of this case.
12 While Mr Robertson QC, as leading counsel for Harstedt, did an exemplary job at trial in presenting the plaintiff’s case and making submissions, I do not consider that the factual nature of the proceeding or the legal principles to be applied were sufficiently complicated or difficult as to require the briefing of senior counsel. Competent junior counsel was well able to deal with all issues in the case – as Mr Messer clearly demonstrated. While Harstedt is entitled to brief senior counsel if it so chooses, it is not an expense which Mrs Lopez should bear.
13 Further, I note that although Harstedt contended that the proceeding raised complex questions of law and fact and the involvement of senior counsel was limited to appropriate aspects of the action, the submission was made in general terms and Harstedt did not attempt to set out in detail the factual basis for the contentions. In the circumstances, I am not satisfied that a sufficient basis existed.
14 Accordingly, I will make the orders sought by Harstedt (and not objected to by Mrs Lopez) save for the proposed minute 11 which allowed the costs of both senior and junior counsel in the proceeding. The orders are as follows:
a) The court declares that the alienation from the first defendant to the second defendant of the interest of the first defendant in the land at 10 Gaunt Street, Lara in the State of Victoria being the land comprised in Volume 9158 Folio 218 of the Register kept under the Transfer of Land Act 1958 (“the land”) which was effected by an agreement entitled “Separation Agreement” between the first defendant and the second defendant dated 15 January 2012 is void pursuant to section 172 of the Property Law Act.
b) The court declares that the transfer of the land dated 23 May 2017 and registered by the Registrar of Titles on 26 May 2017 and numbered AN873017B from the first defendant and the second defendant to the second defendant is void pursuant to section 172 of the Property Law Act.
c) The first defendant and the second defendant by themselves or by their servants or agents do and execute all things and documents necessary for the registration by the Registrar of Titles by 26 October 2018 of a transfer of the land from the second defendant to the first defendant and the second defendant as joint proprietors.
d) If the first defendant does not do and execute all things and documents necessary for the registration by the Registrar of Titles by 26 October 2018 of a transfer of the land from the second defendant to the first defendant and the second defendant as joint proprietors:
i) the second defendant shall execute a paper transfer of the land from the second defendant to the first defendant and the second defendant as joint proprietors, the second defendant signing the paper transfer as both transferor and transferee, and provide it to the Registrar of the County Court by 29 October 2018; and
ii) the Registrar of the County Court is directed to sign the transfer on behalf of the first defendant as transferee and return it to the solicitors for the second defendant.
e) Within five days of the Registrar of the County Court returning the transfer to the solicitors for the second defendant, the second defendant shall:
i) complete a duties form as transferor and transferee;
ii) lodge the transfer for assessment of stamp duty;
iii) lodge the transfer for registration by the Registrar of Titles; and
iv) provide a copy of this Judgment to the Registrar of Titles.
f) If a transfer of the land from the second defendant to the first defendant and the second defendant as joint proprietors is not registered by the Registrar of Titles by 23 November 2018, the plaintiff have liberty to apply for further orders in relation to the transfer of the land from the second defendant to the first defendant and the second defendant as joint proprietors.
g) Without prejudice to the preceding paragraph, if a transfer of the land from the second defendant to the first defendant and the second defendant as joint proprietors is not registered by the Registrar of Titles by 23 November 2018, the plaintiff have liberty to apply on notice to the Registrar of Titles as Third Defendant for an order under section 103(1) of the Transfer of Land Act directing the Registrar to amend the Register or otherwise do any act or make any recordings necessary for the registration of the first defendant and the second defendant as joint proprietors of the land.
h) For the avoidance of doubt, the court confirms the injunctions contained in paragraphs 1 and 2 of the judgment of the court dated 31 August 2018.
i) The plaintiff serve a copy of this judgment on the first defendant and the second defendant by service in accordance with rule 6.07 of the County Court General Civil Procedure Rules 2008.
j) The first and second defendants pay the plaintiff’s costs of this proceeding including reserved costs, save as to the costs of senior counsel, such costs to be taxed on a standard basis in default of agreement.
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