Mattingly v Cosh

Case [2025] WASC 70

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   MATTINGLY -v- COSH [2025] WASC 70

CORAM:   GETHING J

HEARD:   28 FEBRUARY 2025

DELIVERED          :   10 MARCH 2025

FILE NO/S:   CIV 1211 of 2022

BETWEEN:   WANDA MARGRIETE MATTINGLY as executor of the will of CALLUM CRAIG PAYNE

Plaintiff

AND

DAVID STANLEY COSH

First Defendant

TALEAH RACHELLE HAY COSH as executrix of the will of KYLA WINIFRED HAY COSH

Second Defendant

COLIN JEFFREY NICHOLL as executor of the will of RONALD HAY PAYNE

Third Defendant

ROSS GEORGE PAYNE as executor of the will of RONALD HAY PAYNE

Fourth Defendant

DAVID STANLEY COSH as executor of the will of KYLA WINIFRED HAY COSH

Fifth Defendant

COLIN JEFFREY NICHOLL as executor of the will of LINDA AMABEL PAYNE

Sixth Defendant

ROSS GEORGE PAYNE as executor of the will of LINDA AMABEL PAYNE

Seventh Defendant


Catchwords:

Practice and procedure - Summary judgment - Declaratory orders made without opposition - Claim for costs unnecessarily incurred by solicitors

Legislation:

Rules of the Supreme Court 1971 (WA) O 66 r 5
Transfer of Land Act 1893 (WA) s 68

Result:

Indemnity costs awarded against solicitors for the third, fourth, sixth and seventh defendants.

Category:    B

Representation:

Counsel:

Plaintiff : No appearance
First Defendant : P G Donovan
Second Defendant : P G Donovan
Third Defendant : P R MacMillan
Fourth Defendant : P R MacMillan
Fifth Defendant : P G Donovan
Sixth Defendant : P R MacMillan
Seventh Defendant : P R MacMillan

Solicitors:

Plaintiff : Bruce Legal Consultants
First Defendant : MDS Legal
Second Defendant : MDS Legal
Third Defendant : Bailiwick Legal
Fourth Defendant : Bailiwick Legal
Fifth Defendant : MDS Legal
Sixth Defendant : Bailiwick Legal
Seventh Defendant : Bailiwick Legal

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

Barnes v Addy (1874) 2 LR 9 Ch App 244

L H K Nominees Pty Ltd v Maureen Ada Kenworthy (as Administratrix of the Estate of Lionel Kenworthy) & Anor [2002] WASCA 291; (2002) 26 WAR 517

Patten v Burke Publishing Co Ltd [1991] 2 All ER 821

Permanent Mortgages Pty Ltd v Vandenbergh (2010) 41 WAR 353; [2010] WASC 10

Pier (WA) (as trustee for Isandi Trust) v Jean Maurice Pty Ltd (in liq) [No 7] [2018] WASC 355

Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)

Westpac Banking Corporation v Dunn [2011] WASC 7

GETHING J:

  1. The action concerns a farming property known as Carinya.  It is convenient to begin by setting out the parties and their relationships.  Consistent with the approach used in the pleadings and affidavits, and intending no disrespect, I will refer to the people involved by their first names.

  2. The action involves three brothers, Ronald Hay Payne (Ron), Callum Craig Payne (Callum), and Ross George Payne (Ross).  

  3. Ron was married to Linda Annabel Payne (Linda).  Ron and Linda had three daughters, Wanda Mattingly (Wanda), Kyla Winifred Hay Cosh (Kyla) and Sonia Tipton (Sonia

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AGLC
Mattingly v Cosh [2025] WASC 70
Case
[2025] WASC 70
Decision Date

CaseChat Overview and Summary

Mattingly v Cosh was a case heard in the Supreme Court of Western Australia. The dispute centred on a claim for indemnity costs incurred by one party, David, in relation to a summary judgment application against multiple defendants. The application sought declaratory orders and costs, which were made without opposition in part but contested regarding the allocation of those costs. The first defendant, David, sought to have the costs paid by the executors of the estates of two deceased defendants, Ron and Linda, personally rather than from the estates themselves. The second and fifth defendants, represented by solicitors, sought to have the costs paid by those solicitors on an indemnity basis. The third issue was whether the costs should be paid out of the estates if the solicitors were unable to meet their obligations.

The primary legal issue before the court was the appropriate allocation of the costs incurred by David in pursuing the summary judgment application. Specifically, the court needed to determine whether the costs should be borne by the solicitors of the third, fourth, sixth, and seventh defendants, by the executors of Ron and Linda's estates personally, or by the estates themselves if the solicitors were unable to pay. This raised questions about the in personam exception and its application to Torrens land, and whether David's knowledge or acceptance of any prior unregistered interest could affect the outcome.

The court considered the submissions and arguments presented by the parties, particularly focusing on the in personam exception as it pertains to Torrens land. Archer J concluded that there was no evidence that David had knowledge of any prior unregistered interest or had accepted the transfer on terms that would bind him to such an interest. Consequently, the in personam exception did not apply. The court found that the costs should be paid by the solicitors on an indemnity basis, and in the alternative, by the executors personally if the solicitors were unable to pay. The court ultimately made orders in line with these findings, and the matter of costs was adjourned for further consideration.

In summary, the court ruled that the costs incurred by David in the summary judgment application should be paid by the solicitors of the third, fourth, sixth, and seventh defendants on an indemnity basis, and in the alternative by the executors of Ron and Linda's estates personally if the solicitors were unable to pay. The court's decision was based on the absence of evidence supporting the application of the in personam exception and the lack of acceptance by David of any prior unregistered interest.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

They then address the in personam exception concluding:[18]Accordingly, in the case of Torrens land, the in personam exemption does not apply to all cases where a registered proprietor has knowledge of a prior unregistered interest. Rather, the exemption recognises that a registered proprietor remains subject to obligations enforceable against them personally, even if those obligations require that the property in respect of which registration has been obtained must be dealt with in a particular manner.[18] First Defendant's Submissions, filed 12 September 2024, par 26 citing Westpac Banking Corporation v Dunn [2011] WASC 7 [11] (Le Miere J). On the facts, the submissions conclude: [19]There is no allegation that David knew that Carinya was a partnership asset (if indeed it was), let alone that David accepted the transfer on terms that he would be bound by the First Partnership's unregistered interest. Without David having accepted the transfer on such terms, the in personam exception cannot even conceivably apply.[19] First Defendant's Submissions, filed 12 September 2024, par 38. The Application was listed for hearing on 12 November 2024 before Archer J. At the commencement of the hearing, counsel for Ron and Linda's Executors advised her Honour that his clients neither consented to, nor opposed, paragraphs (a), (b) and (c) of the orders which I have set out in [19], and only opposed the costs order in (d).[20] He appeared to accept that an order for indemnity costs should be made.[21] Counsel for David then raised the issue of whether those costs should be paid by Ron and Linda's Executors personally, and not out of the estates for which they were responsible.[22] Counsel for Wanda only sought an order for his client's costs to be paid assessed on a party and party basis and fixed in a relatively modest amount.[23] In the end, Archer J made orders in terms of paragraphs (a), (b) and (c) and the question of costs was adjourned to a hearing on 21 November 2024. [20] Transcript 21 November 2024, pages 3 and 4.[21] Transcript 21 November 2024, page 5.[22] Transcript 21 November 2024, page 6.[23] Transcript 21 November 2024, pages 7 and 8. On 19 November 2024, the lawyers for the first, second and fifth defendants filed a minute of proposed orders in the following terms:1.The first defendant's costs of his summary judgment application filed on 9 August 2024 (Application) be paid by the solicitors for the third, fourth, sixth and seventh defendants, Bailiwick Legal, personally on that basis that the first defendant be paid all the costs incurred by him in the Application except in so far as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exceptions, he is completely indemnified for his costs (Indemnity Basis). 2.In the alternative to paragraph 1 above, the first defendant's costs of his summary judgment application filed on 9 August 2024 (Application) be paid by Mr Colin Jeffrey Nicholl and Mr Ross George Payne: (a)on an Indemnity Basis; and: (b)such that Mr Colin Jeffrey Nicholl and Mr Ross George Payne be jointly and severally liable to pay those costs in their personal capacities and that they not be indemnified with respect to payment of the first defendant's costs from the property of the estates of the late Mr Ronald Hay Payne or Mrs Linda Amabel Payne (Estates).3.To the extent that Mr Colin Jeffrey Nicholl and Mr Ross George Payne are unable to pay the first defendant's costs of the Application pursuant to order 2 above, the first defendant's costs of the Application be paid out of the property of the Estates on an Indemnity Basis.