Myra Pty Ltd v Thompson
[2011] WASC 230 (S)
•2 SEPTEMBER 2011
MYRA PTY LTD -v- THOMPSON [2011] WASC 230 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 230 (S) | |
| Case No: | CIV:2408/2011 | 15 & 19 AUGUST 2011, ON THE PAPERS | |
| Coram: | LE MIERE J | 2/09/11 | |
| 22/11/11 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff and first defendants' costs of the application to extend caveat stand as costs of substantive proceedings Plaintiff pay first defendants' costs of the plaintiff's application to re-open | ||
| B | |||
| PDF Version |
| Parties: | MYRA PTY LTD ALEC THOMPSON JILL PRETORIA THOMPSON REGISTRAR OF TITLES |
Catchwords: | Costs Application to extend caveat Application to re-open Party sought indulgence of court to adduce new evidence New evidence altered outcome Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66 r 1 Supreme Court Act 1935 (WA), s 37 Transfer of Land Act 1893 (WA), s 138C |
Case References: | Myra Pty Ltd v Thompson [2011] WASC 230 Stanley v Layne Christensen Company [2006] WASCA 56 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 22 NOVEMBER 2011 FILE NO/S : CIV 2408 of 2011 MATTER : Section 138C of the Transfer of Land Act 1893 (WA)
Caveat No L648673
- Plaintiff
AND
ALEC THOMPSON
JILL PRETORIA THOMPSON
First Defendants
REGISTRAR OF TITLES
Second Defendant
Catchwords:
Costs - Application to extend caveat - Application to re-open - Party sought indulgence of court to adduce new evidence - New evidence altered outcome - Turns on own facts
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Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 1
Supreme Court Act 1935 (WA), s 37
Transfer of Land Act 1893 (WA), s 138C
Result:
Plaintiff and first defendants' costs of the application to extend caveat stand as costs of substantive proceedings
Plaintiff pay first defendants' costs of the plaintiff's application to re-open
Category: B
Representation:
Counsel:
Plaintiff : Mr B D Campbell
First Defendants : Mr D P Bristol
Second Defendant : No appearance
Solicitors:
Plaintiff : Mony de Kerloy
First Defendants : Rowe Bristol Lawyers
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Myra Pty Ltd v Thompson [2011] WASC 230
Stanley v Layne Christensen Company [2006] WASCA 56
(Page 3)
- LE MIERE J:
The costs issues
1 On 2 August 2011 the plaintiff applied for an order under s 138C(2) of the Transfer of Land Act 1893 (WA) that a caveat registered by the plaintiff over land at Falcon be extended until further order. On 11 August I ordered that the operation of the caveat continue until further order. On 15 August the hearing of the plaintiff's application for an order extending the operation of the caveat concluded. I ordered that the operation of the caveat continue until further order. On 17 August the plaintiff applied for leave to re-open and to read the affidavit of Robert Harwood sworn 17 August 2011. I ordered that the orders made 11 and 15 August 2011 extending the operation of the caveat be discharged and the first defendants be restrained from disposing or dealing with the net proceeds of the sale of the Falcon land. On 19 August 2011 I heard the plaintiff's application for leave to re-open and to read the affidavit of Robert Harwood. I ordered that the plaintiff have leave to re-open and to read the affidavit of Mr Harwood. I further ordered that the injunction made on 17 August 2011 be further extended. On 2 September 2011 I delivered my reasons for those orders: Myra Pty Ltd v Thompson [2011] WASC 230. I reserved the costs of the plaintiff's applications. These are my reasons for orders in relation to the costs of those applications.
Application for extension of caveat
2 Supreme Court Act 1935 (WA) s 37 provides that, subject to the Rules, the costs of and incidental to all proceedings in the court shall be in the discretion of the court or a judge. Rules of the Supreme Court 1971 (WA) O 66 r 1(1) provides that subject to the express provisions of any statute and of the Rules, the costs of and incidental to all proceedings shall be in the discretion of the court but, without limiting the general discretion conferred on the court by the Act, and subject to O 66, the court will generally order that the successful party to any action or matter recover his costs. As the general rule that a successful party should have its costs is directed to a consideration of the litigation as a whole, or at least in respect of final orders, the general rule does not necessarily apply to every interlocutory step in the principal proceedings. As the court's primary aim is to reflect the justice of the situation in any costs order, the court is often unable at an interlocutory step in proceedings to determine who in justice should bear the costs of that step.
3 The only relief sought in these proceedings is in relation to the extension of the operation of a caveat. The substantive proceedings,
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- which would ultimately determine the rights between the parties, have now been brought as separate proceedings. Questions may arise concerning whether the proceedings for extension of the operation of a caveat are in their nature final or interlocutory and, whether or not that be strictly so, whether the costs ought to be dealt with on the basis that such proceedings ought to be regarded as of an interlocutory sort. The principles as to costs in interlocutory applications are different from the principles on final hearings. In interlocutory applications for an injunction or extension of a caveat a successful plaintiff will often obtain an order that the costs of the application be its costs in the substantive proceedings. This will mean that the plaintiff will recover the costs of the caveat proceedings if it is successful in the substantive proceedings. If it is not, it will not recover the costs of the caveat proceedings but the defendant will not be entitled to recover under an order for costs in its favour the costs of the caveat proceedings.
4 The plaintiff did not obtain an order extending the operation of the caveat. However, the plaintiff was, in a practical sense, the successful party. The plaintiff obtained an order that the first defendants be restrained from disposing or dealing with the net proceeds of the sale of the Falcon land pending the determination of the plaintiff's claim that it has a charge over the land. The purpose of the order is to allow the sale of the Falcon land to proceed with the net proceeds to be held in trust until the proprietary rights of the plaintiff, if any, are established. The plaintiff proposed to the first defendants a similar outcome before proceeding with their application. In those circumstances I would have been inclined to order that the plaintiff's costs be its costs in the substantive proceedings but for the matters to which I will now refer.
5 The first defendants responded to an application by the plaintiff that was supported only by an affidavit of Mr Walsh sworn 1 August 2011. It was not until after the hearing on 15 August 2011 had concluded that the plaintiff served on the defendant, and subsequently sought to read into evidence, the affidavit of Mr Harwood sworn 17 August 2011. In my reasons for deciding the plaintiff's application for an extension of the operation of the caveat I said that if I did not have regard to the evidence of Mr Harwood I would have made findings which would have led to the plaintiff's application being dismissed.
6 In the circumstances the appropriate order for costs in relation to the plaintiff's application for an extension of the operation of the caveat is that the costs of both the plaintiff and the first defendants should stand as costs
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- in the substantive proceedings, that is Supreme Court action CIV 2651 of 2011.
Application to re-open
7 As a general but not inflexible rule, a party who seeks a dispensation, indulgence or favour of the court is ordered to pay the other party's costs of the application, whether or not it succeeds. Wheeler JA explained in Stanley v Layne Christensen Company [2006] WASCA 56:
The general rule is, and should remain, that where a party is seeking the indulgence of the Court, that party will be required to pay the costs of the application, including costs thrown away, and will not normally receive the costs of the application. However, it is also a normal rule that the Court will have regard to the extent to which it might be said that costs were unnecessarily incurred by a party, and will have regard to the reasonableness of the party's conduct in determining how costs should be awarded. In particular, where a contested application, even for an indulgence, is unnecessary because a party acting reasonably would have consented to appropriate orders, the party who has caused the costs to be unnecessarily incurred will not obtain its costs of such a proceeding merely because the application is for some indulgence. That is implicitly recognised in Briggs at 14, where Owen and Parker JJ appear to accept that an unreasonable withholding of consent might form an appropriate basis for a ruling on costs which departed from the "normal rule" relating to indulgences. However, in that case their Honours considered that it could not be said that the other party was unreasonable to require that the proposed amendment be justified to the satisfaction of a judicial officer [52].
8 The plaintiff's application to re-open and read the affidavit of Mr Harwood was an application which sought an indulgence or favour of the court. The first defendants did not act unreasonably in requiring the re-opening to be justified to the satisfaction of the court. That is particularly so where on 12 August, that is after service of the affidavit of Mr Thompson and before the hearing on 15 August, the plaintiff's solicitors informed the defendant's solicitors that the plaintiff did not intend to file any further affidavit evidence. The appropriate order is that the plaintiff pay the first defendant's costs of the application to re-open.
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