Molloy v Chisholm

[2000] VSC 464

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 4687 of 2000

ROSLYN OLIVE MOLLOY	Plaintiff
v.
KEITH LYLE CHISHOLM AND OTHERS	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 OCTOBER 2000
DATE OF JUDGMENT:	9 NOVEMBER 2000
CASE MAY BE CITED AS:	MOLLOY v. CHISHOLM & ORS.
MEDIUM NEUTRAL CITATION:	[2000] VSC 464

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CATCHWORDS:      Practice and Procedure – Partition proceedings – Costs of parties to the proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. A. Clarke	Garland Hawthorne Brahe
For the First Defendant	Mr. J. Arthur	Garden & Green
For the Second and Third Defendants	Mr. P. Stuckey	Lewenberg & Lewenberg

HIS HONOUR:

1. The plaintiff and the three defendants in this proceeding are brother and sisters.

1. They are tenants in common in equal shares of a seaside home at Lorne (the property).  The property was originally owned by their late father who bequeathed it to the plaintiff's mother for her life and upon her death to the plaintiff, the defendants and a fifth sibling Heather Joy Ray, as tenants in common in equal shares.

1. Following the death of their mother on 23 August 1993 Heather transferred her one-fifth interest in the property to the plaintiff and the defendants in equal shares.  As a consequence each of the plaintiff and the defendants hold a one quarter interest in the property.

1. In February 1995 the plaintiff informed the defendants that she was interested in selling her one quarter share in the property.

1. Between that date and 17 March 2000, being the date on which the originating motion in this proceeding was filed in the Court various proposals in relation to the plaintiff's disposition of her one quarter share in the property were considered but rejected by the parties.

1. Save to observe that once the various proposals began to be considered by the parties, commonsense seems to have flown out the window, I do not propose to go into the detail of those proposals.

1. At all events the plaintiff ultimately instituted this proceeding in the Court whereby she seeks an order for the sale of the property.

1. The proceeding came before me in the Practice Court on 31 October 2000.

1. The defendants did not oppose the plaintiff's application for an order that the property be sold and I made the appropriate orders accordingly.

1. The question then arose as to who should pay the costs of the proceeding.

1. For the plaintiff it was contended that the defendants should pay her costs of the proceeding.

1. For the defendants it was contended that each party should bear his or her costs of the proceeding.

1. The general principle in cases in which a partition order is made is that the entire costs of the action should be borne by the parties in proportion to their interests in the property unless there are circumstances warranting the Court apportioning costs otherwise.  Cannon v. Johnson[1] and Ball v. Kemp-Welch[2].

   [1](1870) L.R. 11 Eq. 90

   [2](1880) 14 Ch.D. 512

1. In Adler v. Ferguson[3], a case in which the co-owners were tenants in common in equal shares Sholl J. said that "costs are borne equally between the parties to a partition action".

   [3](1962) V.R. 129

1. Returning to the present action it is not contended that the plaintiff should be required to pay any of the costs of the defendants.

1. The plaintiff simply instituted the proceeding to bring finality to the matter.  Further the defendants chose to be represented by two firms of solicitors and two counsel when in my opinion one firm of solicitors and one counsel should have sufficed.

1. To determine whether the plaintiff should be entitled to any order in respect of her costs of the proceeding requires a consideration of the question whether the plaintiff was justified in instituting the proceeding in the first instance and whether it was necessary to pursue the proceeding to trial as distinct from the parties agreeing to an order for a sale of the property once the proceeding was filed in the Court, rather than some seven months later.

1. It was argued on behalf of the first defendant that having regard to an open offer his solicitors put to the plaintiff's solicitor by letter of 8 March 2000 the plaintiff was not justified in instituting this proceeding in the first instance.

1. In that letter it was proposed that the property be valued by an independent valuer, that the cost of the valuation be shared by the parties, that the valuation be accepted by the parties and that within 21 days of the date of the valuation, a sum equal to one quarter of the value be paid to the plaintiff.

1. On the face of it a sensible proposal.

1. However, as the plaintiff's solicitor pointed out in his letter of reply of 21 March, the proposal was not made by the second and third defendants.

1. Having considered the impasse which had arisen by 17 March 2000 and in the light of what had preceded it, I am of the opinion that the plaintiff was justified in instituting this proceeding.

1. Thereafter can it be said that the plaintiff acted in an intransigent manner so far as a compromise of the proceeding was concerned.

1. I do not consider that it can.

1. The reality of the situation to my mind is that once the proceeding was filed in the Court the defendants should have immediately notified the plaintiff of their intention to consent to the order sought.

1. They did not, and so on 1 September 2000 the plaintiff was obliged to file a summons in the Court seeking that the appropriate orders be made.

1. That required appearances before a Master of the Court on 3 October at which time the Master made orders concerning the filing of further affidavits in the proceeding by the various parties.

1. Indeed on 2 October 2000 the third defendant filed an affidavit in the proceeding deposing to the fact that although she sought a sale of the property and a division of the proceeds of sale, she also sought to have the plaintiff account to the three defendants from her share of the proceeds some sum for the costs of the maintenance and upkeep of the property said to have been paid by the defendants and the defendants' legal costs of the proceeding.

1. In my opinion the circumstances surrounding this proceeding justify an order being made in the plaintiff's favour for her legal costs of the proceeding.

1. I order therefore that the plaintiff's legal costs of the proceeding including reserved costs be taxed and when taxed paid by the defendants.

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