Raptis & Ors v Wija Investments Development Pty Ltd (No. 2)

[2007] NSWSC 1012

CITATION:	Raptis & Ors v Wija Investments Development Pty Ltd (No. 2) [2007] NSWSC 1012
HEARING DATE(S):	05/09/07
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	5 September 2007
DECISION:	No undertaking sought. Defendant to pay plaintiffs' costs other than those of unsuccessful application the defendants costs of which should be borne by the plaintiffs.
CATCHWORDS:	CONVEYANCING - Land Titles under the Torrens System - Caveats against Dealings - Final relief by way of leave to lodge a further caveat - Whether undertaking as to damages should be made - PROCEDURE - Costs - Whether reserved costs of rejected application to extend the caveat should be paid by successful plaintiffs
LEGISLATION CITED:	Real Property Act 1900
CASES CITED:	Business Acquisitions Australia Pty Ltd v GL & SE (Service Station) Pty Ltd [2007] NSWSC 843 Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1979-1981) 146 CLR 249
PARTIES:	Betty Raptis - First Plaintiff Dimitra Raptis - Second Plaintiff B & D Eastern Pty Ltd - Third Plaintiff Wija Investments Development Pty Ltd - Defendant
FILE NUMBER(S):	SC 3750/07
COUNSEL:	Mr I Davidson - Plaintiffs Mr P Bolster - Defendant
SOLICITORS:	McDonell Vertzayias - Plaintiffs Ma & Company - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

WEDNESDAY 5 SEPTEMBER 2007

3750/07 BETTY RAPTIS & ORS v WIJA INVESTMENTS DEVELOPMENT PTY LTD (NO 2)

EX TEMPORE JUDGMENT

1 There are before me rival sets of orders that I am invited to make to perfect the reasons for judgment that I published in this matter. The two areas of contention relate to costs and an undertaking sought from the plaintiffs as the measure for the grant of leave to file a further caveat under the Real Property Act 1900, section 74O.

2 In my reasons for judgment, finally determining the matter, I indicated that Ms Betty Raptis and Ms Dimitra Raptis were entitled to a declaration that they had a caveatable interest in the land, being a present equitable charge to secure entitlements under a deed dated 4 August 2005. I also said that an order might be made under the Real Property Act 1900, s 74O for leave to lodge a further caveat over the land.

3 I have been referred to Business Acquisitions Australia Pty Ltd v GL & SE (Service Station) Pty Ltd [2007] NSWSC 843. The observation at [18] that it has often been said in cases concerning the extension of caveats, or applications under the Real Property Act 1900, s 74O, that the discretionary considerations relevant to such cases are very much analogous to the discretionary considerations applicable to the grant of injunctions, does not assist me in determining whether or not an undertaking as to damages should be taken. Palmer J was there dealing with the different question whether there was a prima facie case or serious question to be tried that a caveatable interest had been demonstrated.

4 Wija does not oppose an order being made under the Real Property Act 1900, s 74O. It points out, however, that as with an extension of a caveat and the grant of an injunction, a court will usually not grant such relief unless an undertaking as to damages is given. But that is when interlocutory relief is sought. No authority was cited to me where an undertaking as to damages was required by a court as the price for leave to file a further caveat as final relief.

5 The analogy between the caveat and the injunction is apt. Counsel could point to no case where an injunction was granted as final relief and an undertaking as to damages was sought from the successful party.

6 There are at least two reasons why this is so. First, because matters must be determined by the courts once and for all so that there is finality to litigation. A matter is not decided once and for all if an undertaking as to damages is given and may be called upon.

7 Secondly, an undertaking as to damages with respect to final relief is meaningless. Since the successful plaintiff is entitled to the relief by reason of the litigation, the defendant cannot suffer damage caused by the grant of an injunction as distinct from damage that flows from the fact of the litigation itself. Damages are recoverable under the usual undertaking as to damages only with respect to the former (Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1979-1981) 146 CLR 249).

8 I take the same attitude to the caveat in this case. It is granted as final relief and I see no reason to extract an undertaking as to damages from Ms Betty Raptis and Ms Dimitra Raptis.

9 With respect to the question of costs, Ms Betty Raptis and Ms Dimitra Raptis seek an order that Wija pay their costs. Wija seeks an order that Ms Betty Raptis and Ms Dimitra Raptis pay it the costs reserved by Palmer J on 27 July 2007 when his Honour refused to extend an earlier caveat because it was defective for the reasons set out in his Honour’s reasons for judgment.

10 Ms Betty Raptis and Ms Dimitra Raptis point out that a request for costs by Wija on 27 July 2007 was rejected, his Honour saying that the misdescription of the estate or interest claimed in the caveat very rarely ends the contest between the parties and it had not done so when the matter was before him.

11 At [38] his Honour said:

"It seems to me that, in a case such as this, costs should await the final determination of the substantial issue between the parties, which has given rise to the dispute, that is, whether or not the Plaintiffs do have an enforceable interest in the subject land as they claim."

12 I do not regard his Honour as saying that the costs of the application before him should follow the event upon resolution of the substantive proceedings. I interpret his Honour, merely, to have stood over the question for final determination by the judge who was to decide the substantive issue.

13 In my view, there ought to be an exception to an order that Wija pay the costs of Ms Betty Raptis and Ms Dimitra Raptis, that exception being that they should pay Wija’s costs of the application before Palmer J. They brought the application to extend the earlier caveat notwithstanding its defects. They were unsuccessful. I see no reason why the ordinary approach that costs follow the event should not apply in this case. Certainly no argument was advanced to adopt some other approach other than the fact that Palmer J had reserved the question to the trial judge.

14 I make orders in terms of the short minutes of order as amended by me, initialled by me, dated by me and placed with the papers.

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