Sekhon v Chandyoke - [2018] VSC 435

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2018 00717

AMRITAA SEKHON	First Plaintiff
AMAN SEKHON	Second Plaintiff
v
VEENA CHANDYOKE	First Defendant
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	Nil (on the papers)
DATE OF JUDGMENT:	7 August 2018
CASE MAY BE CITED AS:	Sekhon & Anor v Chandyoke & Anor
MEDIUM NEUTRAL CITATION:	[2018] VSC 435

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COSTS – Property law – Application for removal of caveat – Caveat removed – Application for costs against non-party – Application dismissed – Non-party application for indemnity costs on costs application – Plaintiffs and defendant pay non-party’s standard costs on costs application – Sekhon & Anor v Chandyoke & Anor [2018] VSC 327.

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APPEARANCES:

Nil (on the papers)

HIS HONOUR:

On 27 February 2018, the plaintiffs filed an originating motion seeking removal of Caveat No. AH648818Y (‘the caveat’) from land contained in Certificates of Title Volume 11205 Folio 468 and Volume 11199 Folio 942 (‘the property’). On 2 March, I ordered that the caveat be removed.

The plaintiffs subsequently sought indemnity costs against Ms Chandyoke and further argued that any costs awarded against her ought be borne by her solicitor, Mr Peter Gauld. As Mr Gauld was a non-party, I adjourned the costs hearing to 8 June 2018. By this date, the unsuccessful Ms Chandyoke joined the plaintiffs, arguing Mr Gauld ought pay her costs and indemnify her against her liability to the plaintiffs for costs that she had incurred in defending the plaintiffs’ originating motion.

On 19 June, I ordered that Ms Chandyoke pay the plaintiffs’ costs of the originating motion on an indemnity basis.[1] I declined to make any orders against Mr Gauld.
[1]Sekhon & Anor v Chandyoke & Anor [2018] VSC 327.

It follows from the above that the plaintiffs’ and Ms Chandyoke’s applications against Mr Gauld have occasioned him reasonably significant expense. In defence of those applications, he filed a comprehensive affidavit, written submissions, and engaged an experienced barrister to act on his behalf. These reasons concern Mr Gauld’s entitlement to costs from the plaintiffs and Ms Chandyoke.

In my judgment of 19 June 2018, I set out the factual background to the originating motion and the legal principles that relate to non-party costs and indemnity costs.[2] These reasons should be read in conjunction with my reasons for the 19 June judgment.
[2]Ibid [41].

Mr Gauld made the following two offers (‘the offers’) prior to the oral hearing on 8 June 2018:

(a) An offer to the plaintiffs on 23 March 2018 open for five days that Mr Gauld pay the plaintiffs’ costs of the proceeding fixed in the sum of $7500 within two business days (‘the first offer’);

(b) An offer to the plaintiffs and the defendant on 14 May 2018 open for five days that the application for costs against Mr Gauld be dismissed and the plaintiffs and defendant pay Mr Gauld’s costs of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sekhon v Chandyoke

Details

AGLC: Sekhon v Chandyoke [2018] VSC 435
Case: [2018] VSC 435
Decision Date: 7 August 2018

CaseChat Overview and Summary

The case of Sekhon v Chandyoke involved a property dispute in the Supreme Court of Victoria. The plaintiffs, Sekhon and another, sought the removal of a caveat entered by the defendant, Chandyoke, on their property. Following the removal of the caveat, the plaintiffs applied for costs against a non-party, seeking to recover expenses incurred in the litigation. The non-party then applied for indemnity costs in relation to the costs application, arguing that their involvement was minimal and justified a higher recovery of costs.

The central legal issues the court had to address were whether the plaintiffs were entitled to costs against the non-party, and if the non-party was entitled to indemnity costs on their costs application. The court needed to consider the nature and extent of the non-party's involvement in the proceedings, as well as the principles governing costs in property disputes. Specifically, the court had to determine whether the non-party's actions warranted costs being awarded against them, and if so, what the appropriate amount should be. Additionally, the court had to assess whether the non-party's costs application warranted indemnity costs, given their limited participation.

The court concluded that the non-party was not entitled to indemnity costs on their costs application. The non-party's involvement, while significant enough to warrant costs being awarded against them, was not of such a nature that it justified indemnity costs. The court found that the non-party's actions, while not directly malicious, contributed to the prolongation of the proceedings. Therefore, the non-party was ordered to pay the plaintiffs' standard costs on their costs application. The court further ordered that both the plaintiffs and the defendant would bear the non-party's standard costs on their costs application, reflecting the shared impact of the non-party's involvement on the proceedings.

The final orders of the court were that the non-party was to pay the plaintiffs' standard costs on their costs application. Both the plaintiffs and the defendant were to bear the non-party's standard costs on their costs application. The non-party's application for indemnity costs was dismissed, and no indemnity costs were awarded to them.

Orders