Simmons v Love
[2015] WASC 79 (S)
•20 MARCH 2015
SIMMONS -v- LOVE [2015] WASC 79 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 79 (S) | |
| Case No: | CIV:1303/2014 | ON THE PAPERS | |
| Coram: | BEECH J | 20/03/15 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Costs orders made | ||
| B | |||
| PDF Version |
| Parties: | PAUL SIMMONS MARISA GIMONDO ROSS MAITLAND LOVE |
Catchwords: | Costs Claim for specific performance Contract settled subject to dispute about entitlement to compensation Trial of claim relating to compensation Appropriate costs orders |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66 |
Case References: | Simmons v Love [2014] WASC 116 Simmons v Love [2015] WASC 79 Singh v Kaur Bal [2011] WASC 303 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : SIMMONS -v- LOVE [2015] WASC 79 (S) CORAM : BEECH J HEARD : ON THE PAPERS DELIVERED : 20 MARCH 2015 FILE NO/S : CIV 1303 of 2014 BETWEEN : PAUL SIMMONS
- MARISA GIMONDO
Plaintiffs
AND
ROSS MAITLAND LOVE
Defendant
- First Plaintiff
MARISA GIMONDO
Second Plaintiff
AND
ROSS MAITLAND LOVE
Defendant
Catchwords:
Costs - Claim for specific performance - Contract settled subject to dispute about entitlement to compensation - Trial of claim relating to compensation - Appropriate costs orders
Legislation:
Rules of the Supreme Court 1971 (WA), O 66
Result:
Costs orders made
Category: B
Representation:
CIV 1303 of 2014
Counsel:
Plaintiffs : No appearance (on the papers)
Defendant : No appearance (on the papers)
Solicitors:
Plaintiffs : Chris Stokes & Associates
Defendant : Metaxas & Hager
CIV 1361 of 2014
Counsel:
First Plaintiff : No appearance (on the papers)
Second Plaintiff : No appearance (on the papers)
Defendant : No appearance (on the papers)
Solicitors:
First Plaintiff : Chris Stokes & Associates
Second Plaintiff : Chris Stokes & Associates
Defendant : Metaxas & Hager
Case(s) referred to in judgment(s):
Simmons v Love [2014] WASC 116
Simmons v Love [2015] WASC 79
Singh v Kaur Bal [2011] WASC 303 (S)
1 BEECH J: On 6 March 2015, I published reasons for decision dismissing the Buyers' claim for damages, and dismissing the Seller's counterclaim.1 I ordered that the parties file minutes of orders in relation to costs and submissions in support, with the question of costs to be dealt with on the papers.
2 These reasons relate to the costs of the action. They also relate to the costs of earlier proceedings in CIV 1361 of 2014 (the Caveat Proceedings) brought by the Buyers, and opposed by the Seller, for the extension of a caveat lodged by the Buyers to protect their interest under the Contract.2
The parties' positions on costs
3 The Buyers submit that:
(1) they should have their costs of the action up to settlement of the sale of the Subdivided Lot on 10 November 2014;
(2) the Buyers should pay 50% of the Seller's costs of the action after 15 December 2014; and
(3) the Seller should pay the Buyers' costs of the caveat proceedings.3
4 The Seller contends that:
(1) the Buyers should pay the Seller's costs of the action up to 23 October 2014, alternatively there should be no order as to costs in that respect;
(2) the Buyers should pay the Seller's costs of the action after 23 October 2014; and
(3) although the Seller's position in this respect is unclear, there should be no order as to the costs in respect of the caveat proceedings.4
The appropriate costs orders
5 I start with the costs of the action.
6 Until the Contract was settled on 10 November 2014, in substance the action involved a claim by the Buyers for specific performance that was defended by the Seller. The Seller defended the action on various grounds, none of which succeeded at trial. The point on which the Seller succeeded at trial, namely that the Contract required settlement on the basis of lodgement of an application for new titles and the Buyers were not ready and willing to do so, was not raised by the Seller at any time prior to 10 November 2014. Prior to settling on the Contract, the Seller gave written confirmation that the Contract was valid and unconditional and that settlement would take place in accordance with the terms of that Contract.5
7 In these circumstances, in my opinion, it is appropriate that the Seller pay the Buyers' costs of the action up to and including 10 November 2014.
8 Once the Contract had settled, the issue between the parties was the Buyers' claim for compensation in the sum of $95,746.89. The Buyers failed in their claim for that sum.
9 Consequently, the starting point is that costs should follow the event, and the Seller should have his costs of the action after 10 November 2014.
10 Under O 66 r 1 of the Rules of the Supreme Court 1971 (WA), the court has a discretion to order that the successful party receive less than whole of his costs, or that he pay the costs of some issue or issues.
11 I adopt, without repeating, the principles outlined in Singh v Kaur Bal.6
12 The Buyers' submissions point to defences raised by the Seller on which he was unsuccessful.7 I am not persuaded that those issues were significantly substantial, in the context of the trial as a whole, or, in the case of the issue as to what was said on 18 October 2013, sufficiently discrete and severable from the question of whether the Buyers were ready, willing and able, to justify departing from the ordinary rule that costs follow the event.
13 In my opinion, having regard to the conduct of the case as a whole, an order that the Buyers pay the Seller's costs of the action after 10 November 2014 reflects the justice of the case.
14 Insofar as the Buyers incurred distinct costs relating to the Seller's counterclaim, there should be an order that the Seller pay the Buyers' costs of the counterclaim.
15 I turn to the Caveat Proceedings.
16 The conduct of the Seller necessitated the commencement by the Buyers of their application to extend the caveat. The Seller applied under s 138B of the Transfer of Land Act 1893 (WA), with the result that the Buyers were required to obtain an order extending the caveat within 21 days, or else have it lapse. On 28 February 2014, the Buyers' solicitors wrote to the Seller requesting he withdraw his application under s 138B and allow the caveat to remain on the title. The Seller did not respond to that request.
17 In the Caveat Proceedings, the Seller asserted that the caveat should not be extended because the Contract was illegal or otherwise unenforceable by operation of s 136 and s 140 of the Planning and Development Act 2005 (WA). Further, he contended that the conditions in General Condition 13 had not been met, with the effect that the Contract was no longer on foot.8
18 The contentions made by the Seller in the Caveat Proceedings were abandoned in the action. By his letter of 13 October 2014, the Seller acknowledged the Contract was valid and unconditional. Settlement took place. The Seller amended his defence to withdraw these defences.
19 In these circumstances, the Seller should pay the Buyers' costs of the Caveat Proceedings.
Orders
20 For the reasons I have given, I make the following orders:
(1) In CIV 1303 of 2014:
(a) the Seller pay the Buyers' costs of the action up to and including 10 November 2014, such costs to be taxed if not agreed;
(b) the Buyers pay the Seller's costs of the action from 11 November 2014, such costs to be taxed if not agreed; and
(c) the Seller pay the Buyers' costs of the counterclaim, such costs to be taxed if not agreed.
(2) In CIV 1361 of 2014, the Seller pay the Buyers' costs of the proceedings.
1Simmons v Love [2015] WASC 79.
2 See Simmons v Love [2014] WASC 116.
3 Plaintiffs' submissions dated 16 March 2015 [13], [19], [12].
4 Defendant's submissions dated 12 March 2015 [3] - [5].
5 Exhibit B, 15.
6Singh v Kaur Bal [2011] WASC 303 (S) [9] - [15].
7 Plaintiffs' submissions dated 16 March 2015 [20], [21].
8Simmons v Love [2014] WASC 116 [27].
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