Poraviappan v Alderuccio Solicitors

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S CI 2016 00543

KUHAN ARUNASALAM PORAVIAPPAN	Plaintiff
v
ALDERUCCIO SOLICITORS	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	22 July 2016
CASE MAY BE CITED AS:	Poraviappan v Alderuccio Solicitors
MEDIUM NEUTRAL CITATION:	[2016] VSC 417

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PRACTICE AND PROCEDURE — Costs of the proceeding — Costs of interpleader summons — Where interpleader application dismissed by consent — McPherson, Thom & Co v Coombie Pastoral Co Pty Ltd [1929] VLR 295 — Supreme Court (General Civil Procedure) Rules 2015, Order 12.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	—	Clayton Utz
For the Defendant	—	Alderuccio Solicitors

HER HONOUR:

Introduction

1. On 13 May 2016 the following orders, inter alia, were agreed between the parties:

(a)   the defendant’s interpleader summons filed 22 April 2016 (‘the interpleader application’) be dismissed;

(b)   the plaintiff’s summons filed 12 May 2016 (‘the summary judgment application’) be dismissed;

(c)    the defendant pay to the plaintiff the sum of $350,000 of the total sum of $400,000, which the plaintiff caused to be transferred to the defendant firm’s trust account on or about 2 February 2016, within 7 days; and

(d)  the remaining $50,000 that the plaintiff had caused to be transferred to the defendant firm’s trust account remain in the trust account pending the determination of the costs of the interpleader summons and the proceeding generally.

1. As the parties were unable to agree on the costs of the interpleader application and the proceeding generally, directions were made for the parties to file written submissions regarding those costs.

1. The plaintiff seeks that his costs of the interpleader application and the proceeding generally be paid by the defendant, with further written submissions to be made as to the basis upon which the costs are to be taxed, in the absence of agreement.  The defendant seeks that its costs of the interpleader application be paid by the plaintiff on an indemnity basis. 

1. For the following reasons, I have determined that the plaintiff’s costs of the interpleader application and the proceeding be paid by the defendant and there be no orders as to the defendant’s costs.

Background

1. On 3 July 2015, Cirach Development Pty Ltd (‘Cirach Development’) entered into a contract of sale to purchase a property in Point Cook, Victoria (‘the property’) from Aero Developments Pty Ltd (‘the vendor’), with the intention of developing the property (‘the project’).  The plaintiff agreed to become a private investor in the project.  It is unnecessary to go into the detail of the arrangement between the plaintiff and Cirach Development other than to note the matters now set out below.

1. The plaintiff contributed a significant amount of money towards the acquisition of the property.  Completion of the contract of sale was due to occur on 14 January 2016.  Cirach Development did not pay the balance of the purchase price by that date, and the vendor…