Leng v Miller

[2022] WASC 444

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   LENG -v- MILLER [2022] WASC 444

CORAM:   MASTER SANDERSON

HEARD:   8 DECEMBER 2022

DELIVERED          :   20 DECEMBER 2022

PUBLISHED           :   20 DECEMBER 2022

FILE NO/S:   CIV 1925 of 2022

BETWEEN:   AU YEONG WAI LENG

Plaintiff

AND

KATHLEEN RUTH MILLER

First Defendant

ROSS CHARLES MILLER

Second Defendant

Catchwords:

Costs - Application for indemnity costs made by plaintiff - Intersection of costs and rules and humanity - Relevance of festive season - Turns on own facts

Legislation:

Nil

Result:

Costs of application to be paid by defendants
Application for indemnity costs dismissed

Category:    B

Representation:

Counsel:

Plaintiff	:	M J Keating
First Defendant	:	J Moffat
Second Defendant	:	J Moffat

Solicitors:

Plaintiff	:	Williams & Hughes
First Defendant	:	DFG Legal
Second Defendant	:	DFG Legal

Case(s) referred to in decision(s):

Nil

MASTER SANDERSON:

1. The plaintiff is the owner of a farm in Fairbridge.  By written lease dated 27 November 2017, the plaintiff leased the farm to the defendants.  The term of the lease was three years.  The lease expired by fluxion of time on 31 December 2019.  However, on 1 July 2019 the lease was automatically extended until 31 December 2021 pursuant to a provision of the lease, neither party having given notice to the other the lease would not be extended.

2. After the lease expired on 1 January 2022, the defendants remained in occupation on the farm on effectively a monthly tenancy.  On 21 July 2022, the plaintiff, through her solicitors, gave notice to the defendants of termination of the lease.  Termination was to take effect on 25 August 2022.  There is no dispute between the parties that the notice of termination was effective and as at 25 August 2022, the defendants were obliged to deliver up possession of the farm.

3. The defendants failed to vacate the property by the due date and on 2 September 2022, the plaintiff issued these proceedings.  The defendants entered an appearance and on 5 October 2022, the plaintiff applied for summary judgment.  The application was supported by an affidavit of the plaintiff.  It is worth noting the summary judgment application was defective in two respects.  First, the statement of claim did not accurately plead the material facts.  Secondly, judgment was sought under O 16 not O 14.  Nothing turns on these defects.  They could have been easily remedied.  In the event, no remedial action was necessary.  The parties settled their differences.

4. The compromise was recorded in a memorandum of consent orders filed 11 October 2022.  This led to Registrar Fatharly making the following orders:

   1.The Defendants deliver up vacant possession to the Plaintiff forthwith the land described as Lot 51 on Diagram 61528 being the whole of the land comprised in certificate of title volume 1609 folio 113 and Lot 17 on Plan 4616 being the whole of the land comprised in certificate of title volume 1609 folio 114, more commonly known as 166 Morrell Road, Fairbridge, Western Australia.

   2.The Defendants pay the Plaintiff's costs of the action and the application, to be taxed if not agreed.

   3.The hearings listed on 20 October 2022 and 1 November 2022 be vacated.

1. These orders which largely mirrored the consent orders entered into between the parties contain no provision for the time within which the defendants were to deliver up possession.  As a general rule, when I make orders for the delivery up of possession of a property I specify that possession is to be given within 28 days.  Most of these orders are made in cases where a financial institution is seeking possession of a mortgaged property.  The loan documents do not provide a time within which possession must be delivered up but providing some time to a defendant seems reasonable.  But that was not done in this case.  Perhaps it was overlooked or perhaps it was a matter which was agreed between the parties and which was not included in the order for that reason.  Be that as it may, the defendants were, by the terms of the order, obliged to deliver up possession of the farm on 11 October 2022.

2. In fact they did not deliver up possession.  On 18 November 2022, the plaintiff issued a chamber summons seeking the appointment of a receiver with power to remove the livestock on the farm and arrange for its sale.  The powers given to the receiver were extensive and need not be detailed for the purposes of these reasons.  However, it is worthy of note the plaintiff also sought an order the defendants put the receiver in funds prior to his removing the livestock from the farm.  Quite how that was to be achieved is not clear from the filed documents.

3. As at 11 October 2022, it would seem the defendants had on the farm 800 sheep, including lambs, two llamas, two alpacas, four horses and five pigs (God's Creatures).  The sheep included pregnant ewes and three‑quarters of the sheep had lambs at foot.  Clearly removing God's Creatures from the farm was an undertaking replete with difficulty.  One solution would have been for the receiver to deliver God's Creatures to the local abattoir thus bringing matters to a slightly macabre end.  Otherwise, the receiver had to find agistment for God's Creatures and undertake the process of relocation.  That clearly would have taken some time.

4. The various affidavits attach correspondence passing between the parties.  That correspondence indicates that at all times the defendants were aware of their obligation to deliver up vacant possession of the farm and that they were using their best endeavours to relocate God's Creatures.  The impression left from reading the correspondence is that the plaintiff was both demanding and intransigent.  Her solicitors do not appear to have been alive to the difficulties faced by the defendants.  That is not in any way to deny the plaintiff was entitled to vacant possession of the land - she had a consent order to that effect.  But it might have been expected she would have been alive to the difficulties faced by the defendants.

5. The matter came on in chambers on 24 November 2022.  Counsel for the defendants moved for orders appointing the receiver.  The defendants were represented by counsel.  Counsel sought to have the matter adjourned to allow for final removal of God's Creatures from the farm.  After hearing argument, I adjourned the matter until 8 December 2022 on condition the defendants filed an affidavit confirming all livestock had been removed.  On 24 November 2022, the first‑named defendant swore an affidavit to that effect.  In other words, as at 24 November 2022, vacant possession of the farm was given to the plaintiff.

6. When the matter came on on 8 December 2022, the only issue was as to costs.  The plaintiff sought an order for indemnity costs.  That submission was put on two grounds.  First, it was said as a matter of discretion this was a case where indemnity costs were warranted.  The principles relating to indemnity costs were not in dispute and were carefully articulated by counsel for the plaintiff.  With respect, this was not a case where, in the exercise of discretion, an order for indemnity costs was warranted.  Those of us who are mired in the court system still occasionally view the real world through the glass darkly.  The defendants here were not being intentionally difficult.  They moved as quickly as possible to deal with a difficult problem.  They had in mind the welfare of God's Creatures.  Making of an indemnity costs order would be draconian.

7. The second basis upon which indemnity costs were claimed was contractual.  The lease contained a provision to the effect, if costs were incurred in enforcing any of the provisions of the lease, then those costs would be paid by the defendants on an indemnity basis.  Counsel for the plaintiff acknowledged contractual provisions such as those in the lease could not bind the court.  But by reference to authority, he pointed out that in most cases a court will give effect to an agreement in relation to costs.  It was his submission that the facts in this case justified an indemnity costs order.

8. It is perhaps unfortunate that the plaintiff and her solicitors had not had a visit from the ghost of Christmas past.  If that had happened, bearing in mind the invidious position the defendants found themselves in, then perhaps the application for indemnity costs would not have been made.  There is no doubt the plaintiff is entitled to their costs but in the circumstances of this case I am not satisfied costs should be awarded on an indemnity basis.  Humanity must prevail.

9. Perhaps the last word should go to Charles Dickens:

   And so as Tiny Tim observed, God bless us, everyone.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MM

Associate

20 DECEMBER 2022