Weston, L.K. v Beaufils, S.W

[1993] FCA 703

JUDGMENT No. ........ ........ .. ......,,.... 7 0 3 1 9 3

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 455 of 1992
GENERAL DIVISION	1

Between:  LAWRENCE KEITH WESTON

Applicant

And :  STEPHEN WAYNE BEAUFILS

FEDERAL COURT OF Respondent

AUSTRALIA PRINCIPAL REQISTRY

EX TEMPORE JUDGMENT

EINFELD J SYDNEY 8 SEPTEMBER 1993

The parties are consenting to the dismissal of a motion and the applicant admits that the motion should be dismissed because it cannot succeed. On the question of costs the applicant argues that the behaviour of the respondent to the motion caused the motion to be filed as the only available means for the protection of the applicant's interest in the properties concerned. The circumstances are that the respondent to the motion who is the mortgagee wishes and proposes to exercise a power of sale, notwithstanding the fact that the hearing of the dispute about the ownership is shortly to come before the Court for hearing. In the ordinary course the respondent would be entitled to its costs of a futile motion but I have been referred to a considerable volume of correspondence that has passed between the parties over the last 16 months or so, all of which on the applicant's side, as it seems to me, was designed to avoid these proceedings and to bring about some rational resolution of the

future of the properties in the light of the litigation.

It is the duty of solicitors and their obligation to the Court and to the system of justice in our community to do what they can to facilitate the avoidance of litigation and to act in a way which is rational and co-operative in the avoidance of unnecessary legal costs. The correspondence in this matter reveals a course of conduct carried out on behalf of and in the name of the respondent to the motion which is, to say the least, not particularly commendable. The solicitors for the respondent seem at all times to have shown a complete lack of co-operation and a signal unwillingness even to discuss, in the traditional way that lawyers have discussed matters of dispute for hundreds of years, the possibility of resolvingthe dispute without resort to litigation.

None of this approach has been explained and I am at a loss to understand it myself. The attitude seems to have been taken that the respondent to the motion had no obligation at all even to consider and discuss rational ways of dealing with this dispute so as to avoid litigation. A mortgagee is of course fully

Nevertheless, today is within a few weeks of a hearing in which	entitled to act in protection of its own interests.
the applicant may well be able to establish a right to the final relief which this motion was designed to achieve on an interlocutory basis. And this mortgagee has delayed for a long period in exercising its rights. To decide without explanation to exercise them so close to a hearing so that even if the applicant is successful there, he will lose a substantial sum by the exercise of the power of sale, seems to me to be at best extremely stubborn. Indeed it does not, so far as the evidence
before me establishes, appear to protect the interests of the mortgagee. It certainly does not have regard, as mortgagees are required to do, to the interests of others who may have a claim on the security of property.
In these circumstances it seems to me that the ordinary rule should be varied and that each party should pay his own costs of the motion.
[Discussion]
Leave to appeal is refused.

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