White v Thompson - [2010] NSWSC 597

CITATION: White v Thompson [2010] NSWSC 597

HEARING DATE(S): 2 June 2010

JUDGMENT DATE :
2 June 2010

JUDGMENT OF: Bergin CJ in Eq

DECISION: Claims dismissed with indemnity costs.

CATCHWORDS: PROCEDURE – multiple claims including baseless allegations of contempt – indemnity costs orders imposed – prohibition on bringing further proceedings until costs paid and leave granted – PROPERTY – whether exchange between counsel and bench in previous proceedings amounted to the granting of a mortgage or charge – whether alienation of property under s 37A of the Conveyancing Act 1919

LEGISLATION CITED: Conveyancing Act 1919

CASES CITED: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Thompson v White [2003] NSWSC 401
White v Thompson [2009] NSWSC 1266
White & Anor v Thompson & Ors [2009] NSWSC 1103

PARTIES: Julian John White (First Plaintiff / Applicant)
Romeo Medina Libut (Second Plaintiff / Applicant)
Byron Ward Thompson (First Defendant / Respondent)
Jennifer Joy Thompson (Second Defendant / Respondent)
Paul Weston as Trustee of the Bankrupt Estate of Byron Thompson (Third Defendant / Respondent)

FILE NUMBER(S): SC 2008/280717

COUNSEL: Julian John White (unrepresented)
Romeo Medina Libut (unrepresented)
D Brown (First and Third Defendants / Respondents)
A Bingham (Second Defendant / Respondent)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BERGIN CJ in Eq

2 JUNE 2010

2008/00280717 JULIAN JOHN WHITE & ORS v BYRON WARD THOMPSON & ANOR

JUDGMENT – EX TEMPORE

1 The background to the disputes between the parties is set out by Windeyer AJ in White & Anor v Thompson & Ors [2009] NSWSC 1103. On 9 April 2010 I dealt with some aspects of the Further Amended Notice of Motion filed on 6 April 2010 by the plaintiffs, Julian John White and Romeo Medina Libut, that included refusing an application for a stay of Windeyer AJ’s orders.

2 The plaintiffs now seek the following orders in their Further Amended Notice of Motion:

2. That, as per Section 37A of the Conveyancing Act 1919 the purchase of the Somersby Property, comprising Folio Identifier 276/4889, is null and void.

3. That the Somersby property be sold and the proceeds placed in the Controlled Monies account as Seaforth Joint Venture assets and disbursed utilising the 28 February 2008 Seaforth Joint Venture accounting of Acting Justice Biscoe.

FURTHER, OR IN THE ALTERNATIVE,

4. A Declaration that the Court Undertakings by Mr Thompson’s counsel given on 13 May 2003 give rise to an equitable mortgage or equitable charge or equitable lien over the Somersby property, comprising Folio Identifier A/409546, securing the Seaforth Joint Venture parties accounting of Acting Justice Biscoe.

5. That, the Court Undertakings by Mr Thompson’s counsel on 13 May 2003 be enforced.

6. That the Somersby property be sold and the proceeds placed in the Controlled Monies account as Seaforth joint venture assets and disbursed utilising the 28 February 2008 Seaforth Joint Venture accounting of Acting Justice Biscoe.

7. A Declaration that the Seaforth joint venture accounting entitlements or debts…

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 White v Thompson

Details

AGLC: White v Thompson [2010] NSWSC 597
Case: [2010] NSWSC 597
Decision Date: 2 June 2010

CaseChat Overview and Summary

In the case of White v Thompson, the plaintiff sought to enforce what he claimed to be a mortgage over property, which was in dispute. The defendant, Thompson, argued that the plaintiff’s claim was baseless and an abuse of process. The court was required to decide whether the exchange between counsel and the bench in previous proceedings amounted to the granting of a mortgage or charge. Additionally, the court had to consider whether the alienation of property under section 37A of the Conveyancing Act 1919 was applicable.

The court held that the exchange between counsel and the bench did not amount to the granting of a mortgage or charge. The court found that the plaintiff’s claims were baseless and an abuse of process, resulting in the imposition of indemnity costs orders against the plaintiff. Furthermore, the court prohibited the plaintiff from bringing further proceedings until the costs were paid and leave was granted. The court's reasoning was based on the fact that the plaintiff had made baseless allegations of contempt and had engaged in an abuse of process. The court found that the plaintiff's conduct was vexatious and oppressive, and that the defendant had been forced to defend multiple claims, including baseless allegations of contempt. The court considered the appropriate remedy to be the imposition of indemnity costs orders and a prohibition on the plaintiff bringing further proceedings until the costs were paid and leave was granted.

The court ordered that the plaintiff pay the defendant's costs of the proceeding on an indemnity basis, and that the plaintiff be prohibited from bringing further proceedings in relation to the property until the costs were paid and leave was granted. The court also ordered that the defendant be at liberty to apply for an extension of time for the payment of costs, and that the plaintiff be at liberty to apply for leave to bring further proceedings. The court's decision was based on the principle that the courts have an inherent jurisdiction to control their own process, and to prevent abuse of the judicial process. The court found that the plaintiff's conduct amounted to an abuse of process, and that the appropriate remedy was to impose indemnity costs orders and to prohibit the plaintiff from bringing further proceedings until the costs were paid and leave was granted.

Orders