Laycock v Registrar General of New South Wales (No 2)

[2012] NSWSC 249

Supreme Court

New South Wales

Medium Neutral Citation:

Laycock v Registrar General of New South Wales (No 2) [2012] NSWSC 249

Hearing dates:

21 February 2012

Decision date:

21 February 2012

Before:

Rein J

Decision:

1. Plaintiff to pay the second defendant's costs of proceedings.

2. Plaintiff to pay the fourth defendant's costs of proceedings until 29 September 2011 and thereafter on an indemnity basis.

Catchwords:

PROCEDURE - costs - departing from the general rule - inducement to bring claim and flawed understanding of the law - notice given of the correct position - departure from general rule not warranted

PROCEDURE - costs - departing from the general rule - unremunerated work done on behalf of a trust not an appropriate consideration

PROCEDURE - costs - departing from the general rule - order for costs on an indemnity basis from date of offer of compromise

Legislation Cited:

Associations Incorporation Act 1984
Charitable Trusts Act 1993

Category:

Consequential orders

Parties:

John Kevin Laycock (Plaintiff)
Registrar General of New South Wales (First defendant)
Attorney General of New South Wales (Second defendant)
Kendall Murray Ferguson (Third defendant)
Putty Community Association Inc (Fourth defendant)

Representation:

Counsel:
C Mantziaris (Second defendant)
H Stowe (Third and fourth defendants)
John Kevin Laycock (Plaintiff in person)

Solicitors:
Legal Services, Land & Property Information, Department of Finance and Services (First defendant)
Crown Solicitor (Second defendant)

File Number(s):

SC 2011/68579

EX TEMPORE Judgment

1. In this matter I have dealt with the substantive issues this morning and I have ruled that Mr John Laycock is not a trustee of the trust created by Memorandum of Transfer A392482 ("the Trust") and has no standing to bring these proceedings, with the consequence that the summons was dismissed. The Attorney General of New South Wales' application for relief was not contested and I made orders in accordance with the cross-summons.

1. The issue of costs arises. The Attorney General seeks costs of the proceedings on the usual basis. The Putty Community Association Inc ("PCA") seeks indemnity costs on two bases, the first being that the plaintiff's claim was always bound to fail and secondly, on the basis of the communication by the PCA and the Attorney General to the plaintiff that his claim was bound to fail in or about June 2011, and by virtue of an offer of compromise put through a letter written by Mr J Gormley SC in September 2011: see pages 416 to 419 of Exhibit A (all page references hereafter are to Exhibit A).

1. There are three responses to that letter: one from the Crown Solicitor's office (see pages 429 to 430) and one from the PCA through Mr H Stowe of counsel, who is acting for the PCA. Mr Stowe's letter of 26 September 2011 indicates that the PCA accepted Mr Gormley's proposal. An important aspect of Mr Gormley's proposal was that the PCA abandon its claim for registration as proprietor under the Associations Incorporation Act 1984. Mr Laycock responded to that letter and his response is found at pages 427 to 428. He did not accept the proposal and indicated that he would press on with his claim and he has indeed done so.

1. I think it should be noted that Mr Laycock's submissions on costs are based on several propositions. Namely, he says that the catalyst for him commencing the proceedings was an application by the PCA for registration as proprietor of trust property, being the land described in Title Folio 1/960250, and that he believed that that application was flawed and that it was only recently that he was advised that the application was not being pressed by the PCA.

1. Secondly, he says that he understood, as a result of what he had been told by the Registrar General of New South Wales' office, that he was a trustee and entitled to act as a trustee for the Trust.

1. Thirdly, he says that he has, over a long period, acted as a trustee for the Trust. He made the point from the bar table, but I do not think there was any dispute about the facts relied on by him, that he has done a lot of work for the Trust over a long period since 1986. For example, he endeavoured to obtain rate reductions for the community hall (which is built upon the land) based on the use of the land as being as a Charitable Trust as defined in the Charitable Trusts Act 1993. There was also work he did in the 1980s of repair of the community hall, and other steps he has taken on behalf of the Trust over this long period for which he has received no remuneration.

1. So far as knowledge of the position of the PCA and its decision not to press for registration is concerned, I think it is clear from the acceptance by the PCA of Mr Gormley's proposal as communicated by the letter at page 433, that Mr Laycock was on notice at that time that the PCA was not proposing to pursue registration and I do not accept that he only became aware of that position by virtue of the submissions on behalf of the Attorney General in the last few weeks.

1. So far as Mr Laycock's understanding was concerned, it was a flawed understanding of his position. Even when the flaw was made plain to him by correspondence from the other parties, he has persisted with his claims.

1. I have taken into account, in relation to Mr Laycock's submission, that he has done work on behalf of the Trust for which he has not been remunerated. I think, however, there is force in Mr Mantziaris' position that that is a matter which should not intrude into the issue of whether or not costs should be paid on the usual basis, because it is a separate issue quite unconnected with the issue of costs, and secondly, because a lot of what is referred to is work done a long time ago.

1. The problem in Mr Laycock's case is that he has proceeded upon an understanding of his position, induced, he would say, by what he was told by the Registrar General in 1986, which was a flawed understanding. I think his position might have been stronger if, having been appraised of his lack of standing, he had at that point not persisted with the proceedings, but he did not do so. The general rule that costs are payable by the unsuccessful party is to apply unless some other contra indication is found by the Court. I do not think these matters lead to the conclusion that the ordinary rule should not apply.

1. In those circumstances, and taking all these matters into account, in my view, the appropriate order is that Mr Laycock pay the Attorney General's costs of the proceedings and that he pay the PCA's costs of the proceedings up until 29 September 2011 and from that date on, pay the costs of the PCA on an indemnity basis.

1. So far as the application for indemnity costs is concerned, Mr Stowe abandoned his claim on behalf of his client that the costs on indemnity basis be awarded from the commencement of the proceedings and indicated that his client would accept indemnity costs from the date of acceptance and notification of acceptance by the PCA of Mr Gormley's proposal. That proposal was for the matter to be referred to the Attorney General under the legislation without the need for court intervention.

1. As I have said earlier, that proposal, which in my view was an entirely appropriate outcome, was not accepted by Mr Laycock and it was unreasonable for Mr Laycock not to accept it.

1. I therefore, order Mr Laycock to pay the Attorney General's costs of the proceedings, that is of defending the summons and the cross-claim, on the usual basis. I order Mr Laycock to pay the costs of the PCA of the defending the summons up until 29 September 2011 and thereafter on an indemnity basis.

**********

Decision last updated: 20 March 2012