Mattingly v Cosh

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.