Khalifeh v Kebblewhite

[2016] NSWSC 657

Supreme Court

New South Wales

Medium Neutral Citation:	Khalifeh v Kebblewhite [2016] NSWSC 657
Hearing dates:	On the papers
Date of orders:	23 May 2016
Decision date:	23 May 2016
Jurisdiction:	Equity
Before:	Darke J
Decision:	Defendant ordered to pay a portion of plaintiff’s costs
Catchwords:	COSTS – proceedings resolved quickly following commencement – plaintiff seeks order for costs – whether commencement of proceedings premature and unnecessary
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98(1) Conveyancing Act 1919 (NSW), s 66G
Category:	Costs
Parties:	Christian Khalifeh (plaintiff) Georgina Kebblewhite (defendant)
Representation:	Counsel: C P Locke (plaintiff) G George (defendant)   Solicitors: Oliveri Lawyers (plaintiff) Reimer Winter Williamson (defendant)
File Number(s):	2015/330118
Publication restriction:	None

Judgment

1. The plaintiff commenced these proceedings by Summons filed on 10 November 2015. Orders were sought for the appointment of trustees for sale of a property in St Clair. The defendant is the registered proprietor of the property. It seems that she holds that title by virtue of her position as the executor of a deceased estate. The plaintiff is the beneficial owner of a half share in the property.

2. The only remaining issue in the proceedings is costs.

3. The plaintiff’s beneficial ownership was the subject of a declaration made by the Court on 6 April 2006 in earlier proceedings involving the plaintiff, the defendant and others. On that occasion the Court noted the agreement of the parties for the property to be sold. However, on 30 November 2007 in further proceedings involving the plaintiff, the defendant and others, a declaration was made by the Court to the effect that the plaintiff’s mother, Mrs Andrews, was entitled to reside in the property upon certain conditions. The Court also made an order restraining the defendant from interfering with such occupation. Mrs Andrews exercised her right of residence until she moved out in May 2015.

4. In June 2015 the plaintiff’s solicitors (who appear to have then been acting for Mrs Andrews) informed the solicitors who had acted for the defendant in the earlier proceedings that the property was to be sold. Those solicitors, who were subsequently retained by the defendant for the purposes of these proceedings, then made enquiries as to the whereabouts of the defendant. In about July 2015 the plaintiff himself made some enquiries as to the whereabouts of the defendant, and was given information about a Facebook account. It seems that in the intervening years, the defendant had moved to New Zealand and had changed her name.

5. On 26 October 2015 the plaintiff’s solicitors wrote to the defendant’s solicitors, stating that the plaintiff wanted to sell the property as soon as reasonably practicable. The solicitors were asked to advise whether they acted for the defendant and, if so, whether she was willing to co-operate in selling the property. The solicitors were further requested, in the event that they did not act for the defendant, to provide the defendant’s last known contact details. The letter concluded with the statement that unless confirmation was received within seven days that the defendant would co-operate in a sale, proceedings under s 66G of the Conveyancing Act 1919 (NSW) would be commenced.

6. On the following day, the defendant’s solicitors replied, stating that they understood that the defendant was living in New Zealand, and that contact details were being sought, although it may be necessary to engage a New Zealand agent to attempt to locate her.

7. On 29 October 2015 the plaintiff’s solicitors wrote to the defendant’s solicitors. They noted that no advice was given that the defendant would co-operate with the plaintiff in the sale of the property. It was stated that instructions had been received to commence the foreshadowed s 66G proceedings.

8. On 2 November 2015 the defendant’s solicitors responded, stating that until reasonable efforts had been made to ascertain the whereabouts of the defendant, such proceedings were premature. It was stated that, based on previous instructions, it was believed that the defendant would participate in a sale once she became aware that Mrs Andrews had vacated the property.

9. As noted earlier, the proceedings were commenced (and served, as a matter of courtesy, upon the defendant’s solicitors) on 10 November 2015.

10. On the following day, the defendant’s solicitors sent a letter to the plaintiff’s solicitors in which it was stated that they had spoken to the defendant (who had been unaware that Mrs Andrews had vacated the property) and that the defendant proposed to comply with the 2006 agreement that the property be sold. It appears that the defendant’s solicitors had made contact with the defendant on about 10 November 2015 on Facebook.

11. The parties subsequently made arrangements for the property to be sold. Orders for the appointment of trustees for sale were not pursued.

12. The plaintiff seeks his costs of the proceedings. The defendant resists that, principally upon the basis that the proceedings were premature and unnecessary. I have received and considered written submissions provided by the parties on the question of costs. The parties agreed that the matter could be determined on the papers.

13. In my opinion, the appropriate order that should be made in accordance with the discretion provided in s 98(1) of the Civil Procedure Act 2005 (NSW) is that the defendant pay half of the plaintiff’s costs up to and including 11 November 2015, and that the parties otherwise bear their own costs of the proceedings.

14. The plaintiff as a co-owner was in my view justified in seeking to ascertain whether the defendant would co-operate in a sale of the property. An assurance to the effect was not forthcoming due to the fact that the defendant’s whereabouts was not known. In those circumstances, the institution of proceedings under s 66G was a reasonable step to take.

15. However, I think there is some force in the contention that the plaintiff proceeded too quickly to take that step. The letter from the plaintiff’s solicitors of 26 October 2015, in which a seven day deadline was imposed, was promptly responded to. It was stated in the response that it was understood that the defendant was living in New Zealand and that contact details were being sought. Yet within two days, the plaintiff had instructed his solicitors to proceed with the s 66G application. The plaintiff was entitled to do so, but he thereby ran the risk that the proceedings may turn out to have not been necessary. In circumstances where Mrs Andrews had moved out, and the parties had agreed in 2006 that the property would be sold, there does not appear to be any reason to think that the defendant, once apprised of the situation, would resist a sale of the property. The letter from the defendant’s solicitors of 2 November 2015 made a similar point. As it happened, when the defendant was spoken to by her solicitor, she promptly gave instructions to co-operate in a sale. This was made known to the plaintiff’s solicitors by 11 November 2015.

16. In these circumstances, I consider that the plaintiff should have only half of his costs up to and including 11 November 2015, and should bear his own costs thereafter. The defendant should bear her own costs of the proceedings.

17. Finally, I should note that the plaintiff sought an additional order that the defendant be not entitled to be indemnified, out of the estate of which she is the executor, for her costs or any costs she is ordered to pay. There may well be grounds for the beneficiaries of the estate to claim that the defendant is not entitled to an indemnity for such costs. However, I do not think it would be appropriate to make such an order in these proceedings to which the beneficiaries are not parties.

18. The Court orders:

1. That the defendant pay half of the plaintiff’s costs of the proceedings up to and including 11 November 2015;

2. That the plaintiff otherwise bear his own costs of the proceedings;

3. That the defendant bear her own costs of the proceedings.

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Decision last updated: 23 May 2016