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Sekhon v Chandyoke

Sekhon v Chandyoke

Case [2018] VSC 327 19 June 2018

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Limitation Periods

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Civil Litigation & Procedure

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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:	8 June 2018
DATE OF JUDGMENT:	19 June 2018
CASE MAY BE CITED AS:	Sekhon & Anor v Chandyoke & Anor
MEDIUM NEUTRAL CITATION:	[2018] VSC 327

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COSTS – Property law – Application for removal of caveat – Caveat removed – Application for indemnity costs – Whether circumstances are special or unusual such as to justify departure from usual ‘standards costs’ order – Application for costs against non-party – Indemnity costs ordered against first defendant – No costs ordered against non-party – Civil Procedure Act 2010 (Vic) s 29 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.23.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms S Worsfield	MCK Legal
For the First Defendant	Mr J C Simpson	Sutherland Lawyers
For Mr Gauld	Mr C G Juebner	Wisewould Mahony

HIS HONOUR:

The plaintiffs filed an originating motion on 27 February 2018 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 2018, I ordered that the caveat be removed. The matter of costs was reserved.

The plaintiffs now seek costs on an indemnity basis against the first defendant, Ms Veena Chandyoke (‘the defendant’), and submit that any costs payable by the defendant should be borne by the defendant’s solicitor, Mr Peter Gauld. The defendant seeks an order that Mr Gauld pay the costs of both the plaintiffs and the defendant.

The plaintiffs, Ms Amritaa Sekhon and Mr Aman Sekhon, are wife and husband. The defendant is the mother of Ms Sekhon. Mr Gauld was acting as the defendant’s solicitor in relation to several disputes arising between the defendant and the plaintiffs, including the application for the removal of the caveat to which I have referred.

Background

The factual background to the lodgement of the caveat and its removal is set out in my judgment of 2 March 2018. In short, I found that there was no merit to the lodgement or continuation of the caveat. I considered Mr Gauld to be dilatory in certain respects, particularly in his responses to correspondence from the solicitors for the plaintiffs. Prior to the originating motion being filed, there had been extensive interchanges of communication between MCK Legal, solicitors for the plaintiffs, and Peter Gauld & Co, solicitors for the defendant. By letter to Mr Gauld on 16 November 2017, the plaintiffs requested that the defendant provide a withdrawal of caveat by 23 November 2017. Notice was given that in the event that the withdrawal was not forthcoming, proceedings would be commenced for same. On 23 November 2017, Mr Gauld advised that he would seek his client's instructions and requested that no further action be taken.

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 327
Case: [2018] VSC 327
Decision Date: 19 June 2018

CaseChat Overview and Summary

In the matter of Sekhon v Chandyoke, the dispute involved the removal of a caveat and subsequent costs. The parties were Sekhon, the plaintiff, and Chandyoke, the first defendant, with the case being heard in the Supreme Court of Victoria. The plaintiff sought the removal of a caveat entered by the first defendant over a property, and subsequently applied for indemnity costs under the Civil Procedure Act 2010 (Vic). The court was required to determine whether the circumstances of the case were special or unusual, which would justify a departure from the usual ‘standards costs’ order. Additionally, the plaintiff sought costs against a non-party, which was also for the court to consider.

The court examined the criteria for indemnity costs under section 29 of the Civil Procedure Act 2010 (Vic) and rule 63.23 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The court found that the circumstances of the case were indeed special or unusual, warranting a departure from the usual costs order. The court granted indemnity costs against the first defendant for the application to remove the caveat. However, the court declined to order costs against the non-party, as it found that the plaintiff's application against the non-party did not meet the threshold for indemnity costs.

The court ordered that indemnity costs be paid by the first defendant to the plaintiff in relation to the application to remove the caveat. No costs were ordered against the non-party. The decision emphasised the importance of considering the specific circumstances of each case when determining whether indemnity costs are appropriate, and highlighted the threshold that must be met for costs to be ordered against a non-party.

Orders