Wesfarmers General Insurance Ltd v Mitnovetsky

[2009] QCA 291

SUPREME COURT OF QUEENSLAND

CITATION:

Wesfarmers General Insurance Ltd v Mitnovetsky & Ors  [2009] QCA 291

PARTIES:

WESFARMERS GENERAL INSURANCE LTD ABN 24 000 036 279 TRADING AS LUMLEY GENERAL
(applicant/appellant)
v
ALLAN ILYA MITNOVETSKY
(first respondent/ first respondent)
TATYANA TCHERNINA
(second respondent/second respondent)
COMMONWEALTH BANK OF AUSTRALIA
ACN 123 123 124
(third respondent/ third respondent)

FILE NO/S:

Appeal No 5069 of 2009
SC No 1449 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

1 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2009

JUDGES:

Muir and Chesterman JJA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Appeal dismissed

2.   The appellant pay the first and third respondents’ costs of and incidental to the appeal

3.   No order is made in relation to the second respondent’s costs

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – DISCONTINUANCE OR ABANDONMENT – where appeal was rendered futile when first respondent’s interest in the subject land was transferred consequent upon proceedings in the Family Court – where appellant delayed discontinuance by some months – whether appellant should bear the respondents’ costs of and incidental to the appeal

COUNSEL:

T J Bradley for the appellant
J Sweeney for the first respondent
No appearance for the second and third respondents

SOLICITORS:

Mills Oakley Lawyers for the appellant
Hickey Lawyers for the first respondent
No appearance for the second and third respondents

MUIR JA:  The appellant sought a declaration, by originating application, that the first respondent's interests in a parcel of land at Sorrento was the subject of an equitable mortgage from the first respondent to the appellant in terms of "an Application for Eligibility between the [appellant] and the...respondent as Mortgagee dated on or about 2 July 2002" ("the Agreement") and a declaration that the first respondent's interest in the land was charged with repayment to the appellant by the first respondent of a sum of money together with interest.

It was common ground before the primary Judge that the appellant's entitlement to the relief sought depended on the construction of sub-clause (e) of a clause in the Agreement under which the company and its directors agreed to grant the insurer:

1. …a charge … over any property listed in or part of any addendum to this application and

2. permission to lodge a caveat on any or all of the title(s) to any real property."

The primary judge concluded that sub-paragraphs (i) and (ii) were connected by "(ii) acting in aid of (i) to provide an ongoing security by way of a caveat to enforce a charge over the property referred to in (i)".  As the land was not included in the "addendum" it was not the subject of the charge and consequently (ii) did not apply.

His Honour ordered that the originating application be dismissed with costs.  The appellant appealed against that decision.  The appeal has been rendered futile because the first respondent's interest in the land was transferred consequent upon some proceedings in the Family Court. 

The appellant sought no stay nor did it seek to restrain any dealings with the land despite having been informed of the Family Court proceedings.  It, in fact, declined to participate in them.

The first respondent, by letter or e-mail, invited the appellant to discontinue the appeal on account of lack of utility on 22 July 2009.  The invitation was renewed on 27 July and 13 August.  But it was not until 29 September that the appellant gave notice that it no longer intended to prosecute the appeal.

Not surprisingly the first respondent seeks an order for costs.  That was opposed, rather heroically I thought, by Mr Bradley of counsel, but no grounds emerged from his submissions to justify depriving the first respondent of his costs. 

Apart from anything else I have said, the appellant's case was always a weak one.  In my view the primary Judge's findings were correct.  No order is sought against the second respondent.  She did not appear and being self-represented she would have incurred no costs or no material costs.

I, therefore, would order that the appeal be dismissed and that the appellant pay the first respondent's costs of and incidental to the appeal.  I would also propose that there be no order in respect of the second respondent's costs.

CHESTERMAN JA:  I agree with the orders proposed by Justice Muir and the reasons given by his Honour for those orders.

CULLINANE J:  I also agree.

MUIR JA:  The orders will then be as I foreshadowed save that there will also be an order that the appellant pay the third respondent's costs of and incidental to the appeal.