National Australia Bank Ltd v Joyce [No 2]

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: NATIONAL AUSTRALIA BANK LTD -v- JOYCE [No 2] [2013] WASC 274

CORAM: EDELMAN J

HEARD: ON THE PAPERS

DELIVERED : 25 JULY 2013

FILE NO/S: CIV 2016 of 2012

BETWEEN: NATIONAL AUSTRALIA BANK LTD
Plaintiff
AND
DENNIS WAYNE JOYCE
First Defendant
TRYSTAN DALE JOYCE
Second Defendant
RYAN JOYCE
Third Defendant
QUIDOR PTY LTD
Fourth Defendant
NEAMER PTY LTD
Fifth Defendant

Catchwords:

Practice and procedure - Discontinuance of proceedings - No order as to costs

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Proceeding discontinued with no orders as to costs

Category: B

Representation:

Counsel:

Plaintiff:     No appearance
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance
Fifth Defendant            :     No appearance

Solicitors:

Plaintiff:     Clayton Utz
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance
Fifth Defendant            :     No appearance

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

National Australia Bank Pty Ltd v Joyce [2012] WASC 224
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622

EDELMAN J: This is an application by the plaintiff, National Australia Bank Ltd, for orders discontinuing the proceedings against the defendants, and for no order as to costs.
I dealt with the background to these proceedings in National Australia Bank Pty Ltd v Joyce.[1] I explained in that interlocutory proceeding that[2]
[t]he Bank has a very strong prima facie case for its entitlement to possession as a mortgagee in possession. And the balance of convenience is strongly in favour of the Bank. The injunctions sought are in the most accurate sense described as quia timet (because he fears). The Bank's employees and agents have been threatened with serious physical violence.
[1] National Australia Bank Pty Ltd v Joyce [2012] WASC 224 [1] – [34], [44] – [75].
[2] National Australia Bank Pty Ltd v Joyce [2012] WASC 224 [6].
Mr Dennis Joyce, who is named as the first defendant in the title to this action, was never served with the process to commence the action although in my interlocutory decision I discussed the attempts made by the National Australia Bank to effect service upon him. The writ against Mr Dennis Joyce expired on 7 June 2013. The other defendants have not been legally represented at any stage. None of the defendants has ever entered an appearance before this Court. At the hearing of the interlocutory application only the second and third defendants attended court. Both of them made submissions only to say that this Court had no authority. I rejected that submission.
The National Australia Bank now seeks to discontinue the proceedings. It provided the second to fifth defendants with a notice of its intention to discontinue the proceedings. No response was received. An email was sent to the Court on 18 July 2013, copied to email addresses provided by various defendants, indicating the National Australia Bank's intention to discontinue the proceedings and its proposed orders. No response was received from any of the defendants. The National Australia Bank also sought to have its application for proposed orders discontinuing the proceedings, and associated orders, determined on the papers. Again, no response was received from any of the defendants. It is appropriate that this issue be determined on the papers.
Leave should be granted to the National Australia Bank and the proceedings should be discontinued. For the reasons expressed in my interlocutory decision, the National Australia Bank acted reasonably in commencing the proceedings. It has also acted reasonably in continuing the proceedings. As McHugh J explained in the context of discontinuance, it has been held in a large number of cases that if[3]
it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings.
This applies a fortiori (with greater strength) to an instance where the conduct of the party seeking to discontinue has been reasonable and the only costs order sought by that party is an order that there be no order as to costs.
[3] Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 - 625.
The appropriate orders are as sought in the National Australia Bank's proposed orders:
(1)Pursuant to O 23 r 2 of the Rules of the Supreme Court 1971 (WA) the plaintiff be granted leave to discontinue the proceeding.
(2)The proceeding be discontinued.
(3)There be no order as to costs.

CaseChat Overview and Summary

National Australia Bank Ltd brought an action against Joyce in the Supreme Court of Western Australia. The dispute centred around financial matters and the bank sought to discontinue the proceedings. The court was tasked with deciding whether the bank should be granted leave to discontinue the case and whether there should be an order regarding the costs of the proceedings. The bank argued that it had acted reasonably in both commencing and continuing the proceedings until a settlement was reached.

The legal issues before the court involved the principles of discontinuance of proceedings and the appropriate orders in relation to costs. The bank contended that it had acted reasonably throughout the litigation, and given the settlement, there was no need for a costs order. The court examined the conduct of both parties and noted that if both parties had acted reasonably, and if the litigation had continued until settlement or its further prosecution became futile, the usual outcome would be no order for costs. This principle was further reinforced when the conduct of the party seeking to discontinue was reasonable, and the only costs order sought was that there be no order as to costs.

The court found that the bank had indeed acted reasonably in both initiating and continuing the proceedings. The reasonable conduct of both parties until settlement, and the futility of further prosecution, justified the decision to grant leave for discontinuance and to make no order as to costs. The court followed the established principle that in such circumstances, it is appropriate to make no order for costs. Consequently, the court granted the bank's application to discontinue the proceedings and made no order as to the costs of the proceedings.

Legal Principle Established

Leave should be granted to the National Australia Bank and the proceedings should be discontinued. For the reasons expressed in my interlocutory decision, the National Australia Bank acted reasonably in commencing the proceedings. It has also acted reasonably in continuing the proceedings. As McHugh J explained in the context of discontinuance, it has been held in a large number of cases that if[3]it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings.This applies a fortiori (with greater strength) to an instance where the conduct of the party seeking to discontinue has been reasonable and the only costs order sought by that party is an order that there be no order as to costs.[3] Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 - 625. The appropriate orders are as sought in the National Australia Bank's proposed orders:(1)Pursuant to O 23 r 2 of the Rules of the Supreme Court 1971 (WA) the plaintiff be granted leave to discontinue the proceeding.(2)The proceeding be discontinued.(3)There be no order as to costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established