National Australia Bank Ltd v Joyce [No 2]

[2013] WASC 274

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

1. 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.

2. 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].

3. 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.

4. 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.

5. 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.

6. 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.