Hawkins v Wetherill Park Market Town Pty Ltd

[2020] NSWSC 303

Supreme Court

New South Wales

Medium Neutral Citation:	Hawkins v Wetherill Park Market Town Pty Ltd [2020] NSWSC 303
Hearing dates:	25 October 2019, 16 December 2019
Decision date:	26 March 2020
Jurisdiction:	Equity
Before:	Robb J
Decision:	See pars 79 to 86. First to third defendants are entitled to their costs of their notice of motion filed on 24 May 2019. All defendants are entitled to an order that all of their costs occasioned by the filing of the further amended statement of claim be paid by the plaintiff. Parties should confer and submit appropriate short minutes of order to give effect to these reasons.
Catchwords:	COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion
Legislation Cited:	Civil Procedure Act 2005 (NSW) Limitation Act 1969 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Costs
Parties:	John Campbell Hawkins (plaintiff / first respondent) Wetherill Park Market Town Pty Ltd (first defendant / first applicant) Ross Alexander Trimboli (second defendant / second applicant) Francis Trimboli (third defendant) Robert Martignago (fourth defendant / second respondent)
Representation:	Counsel: D Allen (plaintiff / first respondent) D Pritchard SC / JP Nathan (first to third defendants / first and second applicants) M Ziegler (fourth defendant / second respondent)   Solicitors: Kekatos Lawyers (plaintiff / first respondent) KPL Lawyers (first to third defendants / first and second applicants) Golottas Solicitor (fourth defendant / second respondent)
File Number(s):	2018 / 223114

Judgment

1. The plaintiff in these proceedings is Mr John Hawkins.

2. Mr Hawkins commenced the proceedings by summons filed on 20 July 2018.

3. The first defendant to the summons is Wetherill Park Market Town Pty Ltd (Wetherill Park) and the second defendant is Mr Ross Trimboli.

4. The third and fourth defendants were joined to the proceedings by means of an amended statement of claim filed on 4 April 2019. They are Ms Frances Trimboli and Mr Robert Martignago.

5. This judgment concerns costs applications made by the defendants against Mr Hawkins.

6. On 24 May 2019, the first to third defendants filed a notice of motion seeking orders that Mr Hawkins' amended statement of claim be struck out and that the proceedings be dismissed.

7. Those defendants also sought an order that three subpoenas issued by the Court on the application of Mr Hawkins be set aside.

8. The 24 May 2019 notice of motion seeks orders that Mr Hawkins pay the first to third defendants' cost of the proceedings to date.

9. By leave of the court, Mr Martignago also filed a notice of motion on 23 December 2019 seeking an order that Mr Hawkins pay his costs of the proceedings up to the date of the order.

10. The Court made a timetable for the service of submissions, and accordingly, the Court has before it written submissions by the first three defendants dated 16 December 2019, submissions by Mr Martignago dated 23 December 2019, submissions by Mr Hawkins dated 23 January 2020, and reply submissions by the first to third defendants dated 18 February 2020.

11. In essence, all defendants seek orders that Mr Hawkins pay their costs of the proceedings to date on the indemnity basis, or on the ordinary basis in the alternative, and that the defendants be permitted to recover their costs forthwith.

12. It will be appropriate to provide an explanation of the somewhat unusual nature of Mr Hawkins' claim, as well as the history of these proceedings.

13. The primary subject matter of Mr Hawkins' claim is a number of special New South Wales motor vehicle registration number plates.

14. In his summons filed on 20 July 2018, Mr Hawkins claimed the following order: "1. The Defendant deliver up within 24 hours to the Plaintiff New South Wales motor vehicle registration number plates, bearing numbers 493, 2924 and 2629”.

15. Mr Hawkins also sought damages and an order for costs.

16. By his 23 May 2018 affidavit in support of the summons, Mr Hawkins gave evidence, in substance, that, in accordance with a deed of release made on 28 May 2003 between himself and the first two defendants, he paid $164,000 on 28 May 2003 for the delivery to him of the three motor vehicle registration plates identified in the summons, but that he had not received the number plates to date. His solicitor demanded delivery of the number plates on 6 April 2018.

17. By an amended summons filed on 9 August 2018, Mr Hawkins added a claim that within seven days Mr Ross Trimboli deliver to him three executed Transfer Rights of Display forms in relation to the three number plates.

18. On 13 August 2018, the Court ordered Mr Hawkins to file a statement of claim.

19. Mr Hawkins filed a statement of claim on 7 September 2018.

20. The claim pleaded was somewhat different to that suggested in Mr Hawkins' affidavit in support of the summons.

21. In short, Mr Hawkins alleged that, on 18 January 2002, he had a right to the three number plates, but on that date Mr Ross Trimboli advanced to him $116,000 on terms that Mr Hawkins would repay $164,000. On 18 January 2002, Mr Hawkins delivered the three number plates to Mr Ross Trimboli together with Rights to Display forms signed by him that would enable Mr Trimboli to display the number plates on registered motor vehicles. This, alleged Mr Hawkins, was done as security for payment of the $164,000.

22. Mr Hawkins alleged that, on 28 May 2003, he and Mr Ross Trimboli entered into a deed under which Mr Hawkins agreed to pay $164,000, and that Mr Trimboli would deliver the number plates together with all indicia of title (the statement of claim does not say so, but I assume that the delivery would occur after Mr Hawkins paid the $164,000). Mr Hawkins alleged that Mr Ross Trimboli delivered the number plates to Mr Hawkins' agent, a named solicitor, on 28 May 2003, and that the number plates were kept by the solicitor pursuant to a possessory lien for a debt owed.

23. Mr Hawkins alleged that, on 15 February 2018, the solicitor returned the number plates to Mr Hawkins, but that, as of the date of the statement of claim, Mr Ross Trimboli had arranged for the number plates to be issued to him by lodging the Rights to Display with the RMS (which I take to mean Roads and Maritime Services).

24. Mr Hawkins then alleged that Mr Ross Trimboli did not have a right to the number plates, and sought orders to the effect that Mr Ross Trimboli take the steps necessary to transfer the three number plates to Mr Hawkins.

25. A number of comments about the terms of the statement of claim are pertinent.

26. The role of the first defendant, Wetherill Park, was not identified.

27. Mr Hawkins did not allege that he paid the $164,000 to Mr Ross Trimboli.

28. The thrust of the allegations may not be clear, but it seemed to be alleged that Mr Hawkins delivered to Mr Ross Trimboli both the three number plates and the relevant "indicia of title". Mr Trimboli then delivered the number plates to Mr Hawkins' agent, but not the indicia of title. On 15 February 2018, the solicitor returned the number plates to Mr Hawkins, but at some unspecified date Mr Ross Trimboli had used the indicia of title to have the RMS issue the number plates to him.

29. On 10 September 2018, the Court made orders for Mr Hawkins to serve his evidence by 12 November 2018, the defendants to serve their evidence by (what looks like) 23 January 2019, and for Mr Hawkins to reply by 6 February 2019.

30. As I have noted above, Mr Hawkins joined Ms Frances Trimboli (Mr Trimboli’s wife) and Mr Robert Martignago as third and fourth defendants by his amended statement of claim filed on 4 April 2019.

31. Mr Hawkins still did not appear to claim any relief from Wetherill Park.

32. In essence, Mr Hawkins sought an order against Ms Frances Trimboli that she deliver to Mr Hawkins a Right to Display document in the form used by the RMS for the number plate 2969, and against Mr Martignago, that he do the same in relation to number plate 2924, and that both new defendants be restrained from displaying or otherwise dealing with those number plates.

33. Mr Hawkins pleaded in par 20 of the amended statement of claim, in effect, that he learned in Mr Ross Trimboli's 6 February 2019 affidavit, for the first time, that Mr Trimboli had alleged that he had disposed of the right to display number plates 2969 and 2924 to Ms Frances Trimboli and Mr Martignago.

34. Wetherill Park and Mr Ross Trimboli filed defences to the amended statement of claim on 14 May 2019, and Ms Trimboli did so on 16 May 2019.

35. The defence filed by Wetherill Park and Mr Ross Trimboli admitted some matters, including the deed relied upon by Mr Hawkins, denied other matters, alleged that some allegations in the amended statement of claim were embarrassing and then, in par 24, alleged that s 16 of the Limitation Act 1969 (NSW) is a complete defence to Mr Hawkins' claim. The defences further said that the Wetherill Park and Mr Ross Trimboli were entitled to the number plates as security, and that Mr Hawkins cannot seek the relief claimed without tendering the amount of $164,000, and then alleged that Mr Hawkins was estopped from seeking the relief claimed, because clause 2 of the deed contained an acknowledgement that the number plates the subject of the deed were returned to Mr Hawkins.

36. The defence filed by Ms Frances Trimboli essentially put Mr Hawkins to proof of his claim.

37. It was in this context that the first to third defendant filed the notice of motion on 24 May 2019 seeking orders striking out or summarily dismissing Mr Hawkins' proceedings.

38. Mr Martignago filed a defence to the amended statement of claim on 4 June 2019. He pleaded that he did not know and could not admit most of the allegations, and alleged that the number plates transferred to him were transferred by a named third-party for valuable consideration with no notice of Mr Hawkins' claim, so that Mr Martignago is a bona fide purchaser for valuable consideration with no notice of Mr Hawkins' claim.

39. On 30 May 2019, the Registrar set down the 23 May 2019 notice of motion for hearing by me on 25 October 2019.

40. On 24 October 2019, Mr Hawkins filed written submissions in which he explained, in response to the first to third defendants’ application to set aside the subpoenas, that they were addressed to financial institutions that operated accounts in the name of Wetherill Park, and were directed at obtaining evidence that Mr Hawkins had paid the amount of $164,000 to Wetherill Park.

41. The first to third defendants filed written submissions in support of the relief sought in their notice of motion on 24 October 2019.

42. They submitted, in par 21 of their written submissions, that the amended statement of claim should be struck out because it did not specify any cause of action, any action based upon a contract or deed entered into on 28 May 2003 was statute barred under s 14 or s 16 of the Limitation Act, and even if any cause of action was not statute barred, the cause of action would need to include an allegation of payment of the $164,000, which the amended statement of claim did not plead.

43. They made a submission in par 23 as to why the Court should not give Mr Hawkins leave to replead.

44. The first to third defendants gave reasons in par 28 as to why the Court should set aside the three subpoenas, but the essential argument was that they were not relevant to a fact in issue in the proceedings in circumstances where the amended statement of claim did not plead that any payment was made to the defendants.

45. They provided additional written submissions to the Court on 25 October 2019, essentially directed to the argument that the amended statement of claim was generally embarrassing in the manner in which it had been pleaded.

46. At the hearing of the notice of motion on 25 October 2019, it became apparent that the absence of a pleading that the $164,000 had been paid, and the time of any such payment, was significant. This is because it was at least possible that the money could have been paid at a time that would defeat any limitation defence.

47. It emerged during the hearing that, although it had been pleaded that Mr Hawkins "would" pay the $164,000, it was his case that the money had actually been paid, even though that had not explicitly been alleged.

48. Furthermore, the amended statement of claim contained no allegations concerning the basis upon which the numberplates had originally been issued, the nature of the title in Mr Hawkins, or the role of the Rights of Display, or any administrative steps taken by RMS that might be relevant to the question of who was entitled to display a particular number plate.

49. The point was reached where counsel for Mr Hawkins asked for the notice of motion to be adjourned so that Mr Hawkins could revise his pleading.

50. On 25 October 2019, the Court made an order directing the plaintiff to serve a draft of any further amended statement of claim on the defendants by 12 November 2019, and stood the notice of motion filed on 24 May 2019 over to 16 December 2019.

51. Between 25 October and 16 December 2019, the following relevant events occurred. On 14 November 2019, Mr Hawkins served his proposed further amended statement of claim. On 28 November 2019, the solicitors for the first to third defendants sent a letter to the solicitor for Mr Hawkins requesting Mr Hawkins to remedy certain defects in the proposed further amended pleading. The solicitors for Mr Hawkins sent a revised draft further amended statement of claim on 4 December 2019. The position that the first to third defendants take is that the revised draft addressed some but not all of the defects. On 10 December 2019, the solicitors for the first to third defendants identified further defects.

52. In an affidavit made on 12 December 2019, the solicitor for the first to third defendants identified allegations in the revised further amended statement of claim as to which the solicitor was of the view that Mr Hawkins had not already served evidence, so that further evidence would be necessary.

53. The solicitor expressed the opinion that the first to third defendants would require an opportunity to respond to any additional evidence served by Mr Hawkins, and that, in those circumstances, he did not envisage these proceedings being heard and determined until late 2020.

54. The solicitor deposed to the costs incurred by the first to third defendants in these proceedings up to 25 October 2019, both in respect of the notice of motion filed on 24 May 2019 and the balance of the proceedings.

55. In respect of the notice of motion, the costs were solicitors’ costs estimated at $16,000, junior counsel’s costs in the sum of $12,372.25, and senior counsel's costs in the sum of $14,850.

56. In respect of the balance of the proceedings, the costs were solicitors’ costs estimated to be $20,000 and junior counsel’s costs in the sum of $7,529.50.

57. When the matter came on for hearing again on 16 December 2019, the Court, by consent and without admissions, made an order that Mr Hawkins have leave to file a further amended statement of claim in the form sent by the solicitor for Mr Hawkins to the solicitors for the defendants on 13 December 2019, and required that the further amended statement of claim be filed and served on or before 23 December 2019.

58. The Court gave directions concerning the defendants' application for costs, including a direction that Mr Martignago file and serve any notice of motion in respect of costs by 6 January 2020. Mr Martignago had not previously made any formal application concerning Mr Hawkins' statement of claim, although he was separately represented at the hearings on 25 October 2019 and 16 December 2090.

59. Mr Hawkins filed his further amended statement of claim on 17 December 2019.

60. In paragraphs 6A to 6QQ of the further amended statement of claim, Mr Hawkins has pleaded the statutory and regulatory basis for the issue of the three numberplates, the rights associated therewith, and the manner in which Mr Hawkins came to own those rights.

61. Superficially, the pleading appears to be adequate, and the response required of the defendants will be to verify the allegations made by examining the statutory and regulatory provisions relied upon by Mr Hawkins, in light of evidence given by him as to how he became entitled to the numberplates.

62. It does not appear that the defendants will be required to make a substantial evidentiary response to this new aspect of Mr Hawkins' pleading, and they have not suggested that they will need to do so.

63. In par 11 of the further amended statement of claim, Mr Hawkins corrected the ambiguity in the amended statement of claim, whereby he had omitted to allege positively that he had paid the $164,000 to Mr Ross Trimboli. The new allegation is that, on 28 May 2003, Mr Hawkins and Mr Ross Trimboli entered into a deed that recorded that Mr Hawkins had paid $164,000 by way of bank cheque, receipt of which was acknowledged, and that Mr Trimboli had delivered the numberplates to Mr Hawkins.

64. The effect of pars 11B to 12A of the further amended statement of claim is, in substance, that Mr Ross Trimboli had released the security and that he would not derogate from his grant and accordingly would not, among other things, use the Rights to Display Forms in any way, including lodging them with what is now the RMS.

65. The relevant effect of pars 15 to 16B of the further amended statement of claim is that, on a date unknown to Mr Hawkins, Mr Ross Trimboli obtained the right to use the numberplates by lodging the Rights to Display Forms, which were those delivered to him by Mr Hawkins, and that the RMS or its predecessor treated Mr Ross Trimboli as having the exclusive right to use the numberplates.

66. As noted above, Mr Martignago filed his notice of motion on 23 December 2019 seeking an order that Mr Hawkins pay his costs of the proceedings on the indemnity basis, or in the alternative, on the ordinary basis.

67. Mr Martignago's solicitor's affidavit, made on the date the notice of motion was filed, explained Mr Martignago's response to the drafts of the revised further amended statement of claim, and stated that Mr Martignago had incurred solicitors costs of $7,018, counsel’s costs of $5,500 in preparing the defence to the amended statement of claim, and $4,730 in respect of the appearances on 25 October 2019 and 16 December 2019.

68. I consider that the following matters are of primary significance to the costs applications now made by the defendants.

69. First, both the statement of claim and the amended statement of claim were defective, as has been effectively acknowledged by Mr Hawkins.

70. The further amended statement of claim does not, however, in any significant way, plead a new claim. As I have noted above, it pleads in detail the statutory and regulatory basis of Mr Hawkins' claim to have proprietary rights in the three numberplates. It corrects a defect in failing to plead, with sufficient clarity, that Mr Hawkins had paid the $164,000. It made more clear Mr Hawkins' claim that Mr Ross Trimboli returned the physical plates to Mr Hawkins by delivering them to Mr Hawkins' agent, but at some later, unknown time, Mr Ross Trimboli wrongly used the Rights of Display Forms originally given to him by Mr Hawkins to have himself recorded by the RMS or its predecessor as the party entitled to use the numberplates and to have new physical numberplates issued to him.

71. I consider that the amendments to the pleadings have corrected defects in the earlier versions of the statement of claim, without in any significant way changing that claim.

72. This is not a case where the effect of the amendment of the statement of claim is to make a substantially new claim, with the consequence that the legal costs incurred by the defendants before the amendment will be largely wasted.

73. This conclusion is reinforced by the first to third defendants' solicitor's affidavit of 12 December 2019, in so far as it identifies discrete aspects of the further amended statement of claim that will require Mr Hawkins to serve additional evidence, to which the defendants will have to respond.

1. Further, in the first to third defendants' solicitor's affidavit made on 24 May 2019, in support of the notice of motion filed on that date, the solicitor explained that Mr Hawkins' affidavits had been served with the original summons and on 19 and 23 November 2018, and the affidavits of the second to fourth defendants were served on 6 or 7 February 2019.

2. Thus, the defendants were content to serve their affidavits in response to Mr Hawkins' affidavits before the first to third defendants first moved on 24 May 2019 for orders striking out or dismissing Mr Hawkins’ claim.

3. While it is probable that all of the parties will have to serve additional affidavit evidence, it has not been established by the defendants that the costs incurred in preparing the first round of affidavits will be wasted.

4. Costs are in the discretion of the Court, where the discretion must be exercised judicially: s 98(1)(a) of the Civil Procedure Act 2005 (NSW).

5. The presumptive rule is that costs follow the event, which means that generally the costs of the successful party are awarded in that party’s favour on the ordinary basis: r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW).

6. In the circumstances discussed above, I am satisfied that the first to third defendants are entitled to their costs of their notice of motion filed on 24 May 2019. They were successful, in that Mr Hawkins was unable to defend the amended statement of claim, and ultimately has been given leave to file a further amended statement of claim that has been significantly augmented by additional allegations to cure the original defects. In this respect, costs should follow the event. The costs should include the costs of the steps taken by the first to third defendants that advised Mr Hawkins of defects in the revised drafts of the further amended statement of claim.

7. Even though Mr Martignago did not file his own notice of motion seeking to strike out or dismiss the amended statement of claim, he is entitled to his costs of appearing in response to the notice of motion filed by the first to third defendants on an equivalent basis to those defendants. Mr Martignago had his own separate interest in having the amended statement of claim struck out or dismissed, and it was reasonable for him to avoid the additional, unnecessary cost of filing his own notice of motion.

8. All defendants are also, in the conventional manner, entitled to an order that all of their costs occasioned by the filing of the further amended statement of claim be paid by Mr Hawkins.

9. I reject the defendants' claims for orders that Mr Hawkins pay the whole of their costs of the proceedings to date. As I have explained, the further amended statement of claim corrects defects in the earlier pleadings but does not propound a substantially new claim. While additional evidence may be necessary, and there may be some waste of costs, the defendants will be adequately protected by the costs orders proposed above. A substantial proportion of the defendants' costs incurred to date will remain effective.

10. There is no ground for the Court to order that the defendants' costs be paid on the indemnity basis. I do not see any relevant delinquency or unreasonableness in the course that Mr Hawkins has taken. He has accepted the inadequacy of his pleadings, but it should be acknowledged in his favour that the juridical nature of the proprietary rights that he seeks to protect is unusual, and it was ultimately the Court itself that raised the deficiency in that aspect of the pleadings.

11. I also reject the defendants' application for orders that they be able to recover their costs from Mr Hawkins forthwith. While there has been an additional delay because of the need for Mr Hawkins to repair his pleadings, and further evidence may be necessary from all parties, I consider that the proceedings are not far away from being able to be set down for hearing. This is not a case where the delay to final disposition of the proceedings is so inordinate that it would be unjust to make the defendants wait to prosecute the costs orders that will now be made until after final costs orders are made in the proceedings.

12. As Mr Hawkins has not resisted the Court making the conventional costs orders following upon him being given leave to file his further amended statement of claim, and as the defendants have failed in their claims for orders that Mr Hawkins pay all of their costs of the proceedings to date, on the indemnity basis, with a right to recover those costs immediately, the defendants are not entitled to orders that Mr Hawkins pay for the defendants' costs of applying for the special costs orders.

13. As Mr Hawkins' own submissions on the special costs orders were brief, there should be no order for the costs of any party in respect of the defendants' applications for special costs orders.

14. The parties should discuss the orders that should be made to give effect to these reasons for judgment and submit appropriate short minutes of order, if they can be agreed, or alternatively the short minutes of order contended for by each party.

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Decision last updated: 27 March 2020