King v Flowers
[2014] NSWSC 1266
•19 September 2014
Supreme Court
New South Wales
Medium Neutral Citation: King v Flowers [2014] NSWSC 1266 Hearing dates: 25/08/2014 Decision date: 19 September 2014 Jurisdiction: Common Law Before: Garling J Decision: Order the defendant to pay the plaintiff's costs of the proceedings
Catchwords: COSTS - general rule that costs follow the event; exceptions to the - possession proceedings - tenancy - proceedings initiated by landlord - claim for possession - defendant vacated property - Notice of Discontinuance filed by plaintiff - whether discretion should be exercised to make costs order in favour of plaintiff Civil Procedure Act 2005, s 98 - Uniform Civil Procedure Rules 2005, r 42.19 - whether sound positive ground or good reason for departing from ordinary course - practical success of plaintiff - proceedings properly initiated - repeated attempts prior to initiating proceedings to have defendant vacate premises - valid notice of termination - unreasonable conduct of defendant Legislation Cited: Civil Procedure Act 2005
Residential Tenancy Act 2010
Uniform Civil Procedure Rules 2005Cases Cited: Australiawide Airlines Limited v Aspirion Pty Limited [2006] NSWCA 365
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Cummins v Australian Jockey Limited [2009] NSWSC 254
Garwolin Nominees v Statewide Building Society [1984] VR 469
Parlby v Blair [2013] NSWSC 100Category: Costs Parties: Margaret Helen King (P)
Mark Flowers (D)Representation: Counsel:
D Neggo (P)
In person (D)
File Number(s): 2014/181145
Judgment
On 18 June 2014, Margaret Helen King, the plaintiff, commenced proceedings by Statement of Claim against Mark Flowers, the defendant.
The Plaintiff's Claim
The Statement of Claim claimed an order for possession of a commercial property at Bowral ("the property"). As well, the Statement of Claim particularised a claim for damages for trespass and sought an order for mesne profits until the possession of the property was given up.
The Statement of Claim pleaded that the plaintiff was the registered proprietor of the property and that, in December 2012, the plaintiff as landlord had entered into a lease for a period of 12 months over the property with the defendant, who was the tenant.
The Statement of Claim pleaded various conditions of the lease and pleaded that, as and from 8 December 2013, by reason of the expiration of the lease, and the fact that the plaintiff allowed the defendant to continue to occupy the property, the defendant became a monthly tenant. As a consequence, it was alleged that either the plaintiff or the defendant could end the tenancy by giving one month's written notice to the other.
It was alleged that on 1 April 2014, the plaintiff gave the defendant a Notice of Termination of Tenancy and that, as a consequence, the defendant's monthly tenancy came to an end on 7 May 2014.
The Statement of Claim pleaded that the defendant had failed to deliver up possession of the property and had failed to make relevant payments of rent, and further had allowed the defendant's goods to remain on the property.
The Defendant's Response
The defendant, who at all material times has acted for himself, filed a document headed 'Defence', but which seems to be a combination of an affidavit, allegations of law and an apparent cross-claim. To that document were annexed a number of other documents.
The document, to which I will refer as the Defence, makes little sense and certainly does not adequately plead any proper defence to the Statement of Claim.
Some examples will suffice:
(a) "2. The plaintiff failed to provide Duty of Care whilst trading in compliance with Trade Practices Act 1974 s 52 or the Fair Trading Act (NSW) 1987 s 42 as to be in a competent manner" ...;
(b) "9. This is confirmed in CONTRACT LAW, based in Common Law Jurisdiction being the foundations of all contracts Nationally and Internationally, and as the Plaintiff was fully aware that there was an existing tenant still under contract, False Pretences to Procure applies.";
(c) "15. On that basis being targeted with false reports, I then activated a PRIVATE SERVICE, an ARBITER from the 'Sovereign Arbitration Commission', being His Royal Highness, Bishop Chris Kember, he is also the Chairman of the International Commercial Group, the Chairman of the International Commercial Guards, Ambassador Director General for Social Economic Development, an NGO for the United Nations and European Union to ensure FAIRNESS for all parties, so that REMEDY can be obtained"; and
(d) "27. I also refer to the New South Wales Government Policies - Administrative, referring to the Residential Tenancy Act of 2010 section 87, refers 'BREACH OF CONTRACT' in the first instance by the plaintiff, and THE PLAINTIFF'S failure with Duty of Care, therefore in Contract Law failing to provide 'FULL DISCLOSURE' confirming that in this matter, MALEFICENCE in TORTS LAW has been confirmed as my response to the Plaintiff's extraordinary claims" (sic)
The property which was leased was a commercial property, and was not subject to the Residential Tenancy Act 2010.
The Defence went on to refer to suggestions that the plaintiff was not in undue hardship. The defendant claimed that the plaintiff ought to have gone to the "administrational court" to remedy the breach of contract, and then finally seemed to make a cross claim in the following terms:
"9. Whatever demands the plaintiff is instructing the Supreme Court of New South Wales to do, then the plaintiff is Commercially Liable, therefore according to "PURIM", meaning 'DELIVERANCE" is required to compensate me by 5 times the amount being demanded by the plaintiff, and
10. If your Honour requires a definition for the word 'PURIM' it refers to the instrument used for Oaths and Declarations known as the Kings James Bible 1611 being a LAWFUL INSTRUMENT identified by the Courts, and refer to the Book of Esther Chapters 8 onwards, where the Hanovarian Gulfic Order - PRIVATE NAVY trading as the CROWN CORPORATION OF LONDON/WORLD CORPORATION referring to Haman's Line, thus any INJUSTICE towards myself as being a Hebrew under the Hebraic Covenant, deliverance is required upon the Sea of Commerce for compensation required to Nurse me back to Good Health, after being Commercially injured by the plaintiff." (sic)
History of Attempts of Plaintiff to Obtain Possession
The owner of the property, the plaintiff, was assisted in the management of it by her daughter, Ms Virginia King. Ms Virginia King has filed an affidavit in the proceedings, affirmed on 11 August 2014.
She deposes to the fact that on 13 September 2013, she gave instructions, as she was authorised to by her mother, to the managing agents of the property to request the defendant to vacate the property at the end of the term of his lease on 7 December 2013. A letter giving effect to that request was sent to the defendant. The defendant did not vacate the property by 7 December 2013.
Upon Ms King's instructions, a further Notice to Vacate was delivered to the defendant on 15 January 2014, requiring possession by 21 February 2014. Possession was not handed over by the defendant by that time.
A further Notice of Termination of Tenancy was served on the defendant on 1 April 2014, requiring vacation of the property by 7 May 2014. The defendant did not vacate the property by 7 May 2014. This Notice of Termination, and the defendant's failure to comply with it, constituted the basis of the plaintiff's Statement of Claim.
A further letter was sent to the defendant with respect to vacating the property. On 13 May 2014, a letter from the defendant's representative was received indicating to the plaintiff and her daughter that the defendant intended to vacate the property on 21 May 2014. The defendant did not vacate the property on or before 21 May 2014.
On 3 June 2014, the plaintiff's agent received a letter from the defendant saying he was unable to vacate the property for a further month. The defendant was requested to vacate the property forthwith and did not do so. As a consequence, these proceedings were commenced.
On 30 July 2014, following the commencement of these proceedings, and about two weeks after the filing of the document entitled "Defence" in the proceedings, the defendant vacated the property. He had removed most of his possessions, but had not returned the keys to the managing agent. It was necessary to arrange for the locks to be changed because, according to the locksmith who had attended, glue had been poured into the locks.
It seems that the defendant finally vacated the property on 6 August 2014, when he handed the keys to the property to the managing agent.
Notice of Motion
In light of the fact that the defendant had finally vacated the property and given possession back to her, the plaintiff filed a Notice of Motion on 11 August 2014, seeking leave of the Court to file a Notice of Discontinuance in the proceedings.
The Notice of Motion also sought that the defendant pay the plaintiff's costs of the Motion and of the proceedings.
The Motion came before the Court on 25 August 2014. The defendant appeared in person. The defendant did not oppose the grant of leave to the plaintiff to discontinue the proceedings, but opposed the making of the costs order.
I determined that the most efficient method of dealing with the costs question was to order that the parties put their submissions on costs in writing, and for the matter to be determined on the basis of those submissions. Neither party opposed this course.
On 25 August 2014, I granted leave to the plaintiff pursuant to r 12.1(1)(b) of the Uniform Civil Procedure Rules 2005 ("UCPR"), to file a Notice of Discontinuance in the proceedings. I ordered that any such Notice of Discontinuance be filed on or before 4pm 1 September 2014.
The plaintiff filed such a Notice of Discontinuance on 28 August 2014.
Plaintiff's Submissions
In accordance with the orders, the plaintiff provided her written submissions as to costs.
Those written submissions drew attention to the sequence of events leading up to the obtaining of possession to which I have referred above, and submitted that there was a proper basis for the commencement of proceedings seeking possession of the property.
The plaintiff further submitted that the monetary claims, namely damages for trespass and mesne profits, which were alternative claims, were based upon the plaintiff's right to possession, and the failure of the defendant to hand over possession. By reference to the lease, the plaintiff submitted that the claim for mesne profits was valued at approximately $1,000 per month, and the claim for damages for trespass would have been of a similar sum. At the time the defendant vacated the property those claims were valued at about $3,000.
The plaintiff submitted this:
"Those claims were justifiable as footnotes to the claim for possession, easily determinable at the same time as the possession claim, but once the defendant gave possession the claims are simply not economical to pursue further as discrete matters. The cost of even a short hearing would have been significantly disproportionate to the amount in dispute, and to press the claims independently of the claim for possession would not have been a sensible use of the court's time and resources." (sic)
It was, the plaintiff submitted, on that basis that leave to discontinue the proceedings was sought. It was submitted that, in the circumstances, this was a reasonable course to follow.
The plaintiff submitted that she was entitled to an order that the defendant pay her costs on the basis that she had achieved practical success in the proceedings by obtaining possession of the property which was not available prior to the commencement of the proceedings, and which had been resisted prior to that time. She further submitted that the costs of the proceedings had been caused by the unreasonable conduct of the defendant, who at no stage had any real defence to a claim for possession.
In support of her submissions, the plaintiff noted that the Court had discretion with respect to costs because r 42.19 of the UCPR did not create any presumption that a discontinuing plaintiff ought to pay the defendant's costs.
The plaintiff accepted that the effect of rule 42.19 was that where a plaintiff discontinued, ordinarily the plaintiff would be obliged to pay the costs of the defendant unless there was a good discretionary reason to otherwise order.
The plaintiff accepted that there needed to "...be some sound positive ground, or good reason for departing from the ordinary course": Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 (at [53]-[54] per Hodgson JA (Tobias JA agreeing); Australiawide Airlines Limited v Aspirion Pty Limited [2006] NSWCA 365 at [54].
The plaintiff submitted that there was good reason to depart from the ordinary course because she had achieved practical success in the proceedings.
In Garwolin Nominees Pty Ltd v Statewide Building Society [1984] VR 469, Kaye J said at 472:
"Other circumstances in which a plaintiff might seek to discontinue might be after the close of pleadings in action for possession the defendant has surrendered possession of the subject premises. In that event the plaintiff would have achieved what he set out to obtain by the issue of the proceedings. It would be quite unjust and unfair if the plaintiff were denied his costs in achieving the relief he sought by the commencement of his action. Furthermore, it would be quite unnecessary to force him to continue on to trial for the purposes of obtaining orders for possession and for costs. The procedure for obtaining leave to discontinue enables a party to bring to an end his litigation when the leave sought has been obtained."
This decision was referred to with approval in Cummins v Australian Jockey Limited [2009] NSWSC 254 per Barrett J at [34].
As well, as indicated earlier, the plaintiff submitted that the Court would be persuaded that there was good reason to depart from the ordinary course with respect to the order for costs because the costs of the proceedings had been caused by the unreasonable conduct of the defendant. The plaintiff relied upon Parlbyv Blair [2013] NSWSC 100 per Black J at [16].
The plaintiff submitted that she clearly had an entitlement to possession based upon the termination of the initial lease and the termination in May 2014 of the monthly tenancy. She submitted that the defendant had never advanced any coherent basis for an entitlement to remain in possession but had done so, so the Court should infer, to suit his own convenience.
As well, the plaintiff pointed to the fact that in addition to the numerous opportunities given to the defendant to return possession of the property to her before proceedings were finally commenced, he was warned that if proceedings became necessary, the costs of those proceedings would be sought from him.
The plaintiff submitted that the Court should find that the defendant ultimately vacated the premises at a time of his own choosing, and that the plaintiff had acted entirely properly and promptly in thereafter discontinuing the proceedings.
Submissions of the Defendant
The submissions of the defendant commenced with the following:
"I Mark Flowers hereby seek Malfeasance Compensation - Right Hand Path Cause and Effect due to Organised Crime - Left Hand Path." (sic)
The submissions consisted of an essentially chronological recounting of the facts and events as the defendant perceived them. For example, he referred again to the engaging of His Royal Bishop Chris Kember of the Sovereign Arbitration Commission and spoke again of the need to engage arbitration:
"... due to the sensitivity of the INDIFERENCE as to the 'EXTREME PREJUDICES' from those claiming to be Christians, and being the other tenants, therefore being a "DENOMINATIONAL INDIFFERENCE" with DOCTRINES, being the ROOT of the problem, for their interpretation of the scriptures flows with CHURCH INCORPORATED IDEALS, as to their conduct that did not fit their statements, for Our Saviour King Yah'Shua turned over the tables for such APOSTASY-HERESY, and so I was not willing to COMPROMISE, and so I was then segregated ..." (sic)
It is somewhat difficult to make any sense of the submissions of the defendant on the question of whether the Court should exercise its discretion to order that he pay the costs of the plaintiff of these proceedings.
The defendant, without identifying any proper factual basis, asserts fraudulent conduct on the part of the plaintiff's legal representatives, he asserts that there was illegal entry made into the premises without his consent, he asserts that he was constantly stalked and under surveillance. At one point, in reference to these proceedings, he asserted that real estate practices which he regarded as corrupted, required this Court to set new standards. He submitted:
"[This] matter confirms that THE INDUSTRY NEEDS to be OVERHAULED with NEW STANDARDS IN COMMERCIAL RENTAL PROPERTIES, as the DOMESTIC RENTAL PROPERTIES, require to be cleaned up, however leaving the COMMERCIAL side of the Rental Market open to such ABUSE, therefore one can begin to understand why tenants would take their frustration out on the properties, when those who are GOOD SCAMMERS, as the Plaintiff has demonstrated, as I suggest the Plaintiff to be well versed, meaning to have EXPERIENCE in RAILROADING the INNOCENT, by ADVANTAGE ..." (sic)
At one point in the submissions, without any basis in fact or law being identified, the defendant asserted that the correspondence, complete with letterheads of, amongst other people, the solicitor and counsel for the plaintiff, were part of organised crime because they were operating outside the law in seeking to use such correspondence in making an application to the Supreme Court. Again, this was a difficult submission to follow. It was irrelevant to any question of costs.
Ultimately, the submissions in opposition to the Court making an order for costs seemed to be encapsulated in the following submission:
"(1) I have kept the Court informed during the proceedings, where in my view, the PLAINTIFF IS NOT ENTITLED TO "COSTS", due to her appalling conduct with complete disregard for the Law and Due Process to the heights of the Supreme Court, this is clear and in evidence, whereby I am owed Malfeasance Compensation from the Plaintiff, and
(2) ADDITIONALLY the premise was left in a better condition when I left, than when I first moved in, where I can provide the EVIDENCE to that EFFECT, for every effort was made to move as requested delays occurred because of real-estate contract purchase process, that have since been finalised . The plaintiff's actions speak for themselves !" (sic)
The defendant then issues what he describes as "'MY FEE SCHEDULE OF COSTS' upon the Sea of Commerce, outlining FEES and CHARGES for TRANSACTIONS". This schedule totals $871,137.50. It is unclear whether this total includes GST. He then sets out a schedule of costs and charges which seemingly have been used to calculate this total of costs.
The submissions do not draw attention to any provisions of the UCPR, nor to any legal authorities which are binding upon this Court, or which are in any way relevant to the Court's exercise of discretion. The submissions do not directly respond to the submissions put on behalf of the plaintiff.
In those circumstances, little help is to be gained from the great bulk of the defendant's submissions which are nothing more than nonsensical and irrelevant drivel.
However, doing the best I can, I take from those submissions that the defendant does not accept that the plaintiff ever had a good cause of action, and hence there was no proper basis for the commencement of the proceedings or their continuation, and that there was no good reason shown why the Court should vary the ordinary rule that a plaintiff, who discontinues the proceedings, should pay the defendant's costs.
Discernment
Section 98 of the Civil Procedure Act 2005, provides that:
"(1) Subject to rules of court and to this or any other Act:
(a)costs are in the discretion of the court, and
(b)the court has full power to determine by whom, to whom and to what extent costs are to be paid; and
(c)the court may order that the costs are to be awarded on the ordinary basis or an indemnity basis."
Part 42 of the UCPR also deals with the question of costs. Rule 42.19 to which reference has earlier been made, provides as follows:
"(2) Unless the court orders otherwise or the notice referred to in rule 12.1(2) otherwise provides, the plaintiff must pay such of the defendant's costs as, at the date on which the notice of discontinuance is filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued."
I accept the submissions of the plaintiff that the approach which is properly to be taken by a court confronted with an application of this kind, is that articulated in the authorities to which reference has been made in [38]-[42] above.
I must first be satisfied that there is some sound positive ground or good reason for departing from the ordinary course. One good reason would be that a plaintiff had achieved practical success. I am satisfied in this case that the plaintiff has achieved practical success in the proceedings.
The proceedings were reasonably and properly brought by the plaintiff seeking possession of the property. The plaintiff had, prior to commencing proceedings, extended to the defendant a great deal of leniency with respect to making repeated attempts to require the defendant to vacate the premises. The first attempt was at the end of the principal lease in December 2013, and thereafter a number of further attempts were made before proceedings were commenced. The Notice of Termination served in April 2014 was an effective and valid notice.
It is fair to say that on the evidence which has been made available to me, the defendant showed no intention whatsoever of giving up possession of the property at all. As is apparent from the defendant's submissions on the question of costs, he was not ready to give up possession until other arrangements which he was making with respect to the purchase of real estate were completed, and he was ready to move out.
Once the plaintiff moved out on 6 August 2014 and returned the keys to the plaintiff's managing agent, the plaintiff had obtained possession of the property. That was the principal purpose for the commencement and maintenance of the proceedings. At that point the plaintiff would have been entitled to continue to pursue, and on my assessment had good grounds for so doing, her claim for mesne profits or damages by way of trespass.
However, acting in a commercially expedient manner, and no doubt with a wary eye on the obligations of a party pursuant to s 56 of the Civil Procedure Act, the plaintiff sought leave to discontinue the proceedings.
Leave was granted without opposition and the discontinuation of the proceedings represented the end of proceedings in which the plaintiff had achieved substantially all which she set out to do.
In those circumstances, I regard this case as being one in which the Court should otherwise order, within the meaning of that phrase in r 42.19 of the UCPR.
As well, should a further basis be necessary, the defendant has plainly acted unreasonably. He has done so in a number of respects. First, he has done so by retaining possession of the property when he had no basis so to do. Secondly, he could have, and should have, given up possession of the property when threatened with litigation. He did not do so. Thirdly, when the litigation commenced with the filing of a Statement of Claim on 18 June 2014, the defendant could have, and ought to have, consented to a judgment. Instead he filed a lengthy document described as a defence which because of its form and content was liable to be struck out as being vexatious and an abuse of the process of the Court. It did not in fact raise any valid defence.
Finally, the defendant chose to vacate the premises and give up possession at a time which suited himself, without regard to the proper rights of the plaintiff.
All of these matters are sufficient in my assessment to constitute unreasonable conduct and to provide another ground for making an order in this case that the defendant pay the plaintiff's costs of the proceedings.
Accordingly, I am satisfied that having regard to all of the facts and circumstances to which I have referred above, the authorities to which I have drawn attention and the broad discretion which the Court has with respect to costs in accordance with s 98 of the Civil Procedure Act and r 42.19 of the UCPR, it is in the interests of justice, and appropriate in all the circumstances to order that the defendant pay the plaintiff's costs of the whole of the proceedings.
Order
I make the following order:
(2) I order the defendant to pay the plaintiff's costs of the proceedings.
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Decision last updated: 19 September 2014
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