Serong v Cooper - [2024] VSC 644

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

S ECI 2024 05401

WILLIAM JAMES SERONG	First Plaintiff
- and -
MERYN ANN SERONG	Second Plaintiff
- and -
GLENN ANDREW COOPER	First Defendant
- and
EK & CL TADROSS PTY LTD (ACN 645 388 978) (trading as CLT LAWYERS)	Second Defendant
- and -
REGISTRAR OF TITLES VICTORIA	Third Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	23 October 2024
CASE MAY BE CITED AS:	Serong v Cooper & Ors
MEDIUM NEUTRAL CITATION:	[2024] VSC 644

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JUDGMENTS AND ORDERS – General rule that costs follow the event – Other relevant considerations – Chen v Chan [2009] VSCA 233, considered – Final orders made.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	No appearance	Robinson Gill
For the Defendants	No appearance

HIS HONOUR:

On 16 April 2024, a warrant of seizure and sale was registered on the title of the property located at Unit 1, 689 Nepean Highway, Carrum. The first defendant was then the registered proprietor of the property. The warrant was due to expire by 15 October 2024.

On 11 September 2024, the property was sold to the plaintiffs at a sheriff’s auction. A contract of sale was signed, the entire purchase price was thereafter paid and the sheriff signed the transfer form.

For settlement to occur, it was necessary for the party in administrative control of the electronic certificate of title to release it to the purchasers, or to the third defendant, the Registrar of Titles.

Administrative control of the electronic certificate of title was held by the second defendant. That firm is the solicitor or former solicitor for the first defendant.

In that connection, on the day of the sheriff’s auction, the plaintiffs’ solicitor wrote to the second defendant seeking cooperation in respect of the electronic title.

A solicitor of the second defendant responded that evening, confirming that the firm had sent the first defendant an authorisation that would allow control of the electronic certificate of title to be transferred to the solicitor for the plaintiffs.

The following day, the solicitor confirmed by further email that she had spoken with the first defendant and informed him that the property had been sold at a sheriff’s auction. The first defendant seems to have responded that he had emailed the sheriff to say that the auction should not proceed as he was going to ‘have the [underlying] case re-opened’. The solicitor informed him that the auction had not been postponed and that the property had sold.

In a further email the following day, Friday, 13 September 2024, the solicitor said, among other things, that she would endeavour to do what she could to have the first defendant sign the authorisation so that the electronic certificate of title could be transferred.

On Monday, 16 September 2024, the solicitor for the plaintiffs emailed the solicitor to the effect that without the authority 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 Serong v Cooper

Details

AGLC: Serong v Cooper [2024] VSC 646
Case: [2024] VSC 644
Decision Date: 23 October 2024

CaseChat Overview and Summary

The case of Serong v Cooper involved a dispute between the plaintiff, Serong, and the defendant, Cooper, concerning the recovery of legal costs. The matter was heard in the Supreme Court of Victoria. The central issue was whether the usual principle that costs follow the event should be applied, or if other relevant considerations should take precedence in determining the allocation of costs.

The court was tasked with deciding whether the general rule that costs should follow the event should be applied in this case. This principle typically means that the losing party is responsible for the winning party's legal costs. However, the court also needed to consider whether there were any exceptional circumstances that warranted a deviation from this rule. The case of Chen v Chan [2009] VSCA 233 was cited as a pertinent authority that outlined the circumstances under which the general rule might be departed from.

In reaching its decision, the court carefully examined the facts of the case and the applicable legal principles. It considered the conduct of the parties, the nature of the dispute, and the outcome in light of the general rule. The court found that while the general rule should generally apply, there were specific factors in this case that warranted a deviation. Consequently, the court decided that other relevant considerations should be given precedence in determining the allocation of costs. The final orders reflected this decision, specifying the costs to be paid by each party.

Orders