Widjaja v Noto - [2022] NSWSC 1446

Supreme Court

New South Wales

Medium Neutral Citation: Widjaja v Noto [2022] NSWSC 1446
Hearing dates: On the papers
Date of orders: 24 October 2022
Decision date: 24 October 2022
Jurisdiction: Equity
Before: Darke J
Decision:
Order made that there be no order as to the costs of the proceedings.

Catchwords:
COSTS – co-ownership – costs of proceedings commenced under s 66G of the Conveyancing Act 1919 (NSW) – where proceedings resolved by consent orders – where proceeds of sale of co-owned property already distributed – whether costs order should be made against first defendant either pursuant to r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) or because of unreasonable conduct – held that there should be no order as to costs of the proceedings, including the costs of the costs application

Legislation Cited:
Conveyancing Act 1919 (NSW), s 66G(1)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Chow v Chow (No 2) (2015) 18 BPR 35,385; [2015] NSWSC 1348
Ferguson v Hyndman [2006] NSWSC 538
Kardos v Sarbutt (No 2) [2006] NSWCA 206
Goldberg v Goldberg [2000] NSWSC 399
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Spathis v Nanos (No 2) [2008] NSWSC 470
Stibbard-Leaver v Leaver [2021] NSWSC 65
Watson v Watson [2021] NSWSC 1544
Zhang v Metcalf; Metcalf v Zhang [2020] NSWCA 228

Category: Costs
Parties: Tami Widjaja (Plaintiff)
Vincenzo Noto (First Defendant)
Giuseppe Noto (Second Defendant)
Graziella Granata (Third Defendant)
Representation:
Counsel:
Mr C Bolger (First Defendant)
Solicitors:
Matulich Lawyers (Plaintiff)
Vince Margiotta Law Practice (First Defendant)
Rams Family Lawyers (Second and Third Defendants)

File Number(s): 2021/343059
Publication restriction: None

Judgment

These proceedings, which were largely resolved by Consent Orders entered on 17 March 2022, concerned an application brought by the plaintiff (Ms Widjaja) for the imposition of a statutory trust for the sale of certain co-owned land situated on Brenan Street, Smithfield, pursuant to s 66G(1) of the Conveyancing Act 1919 (NSW). Ms Widjaja owned a half-interest in that property, as a tenant in common in unequal shares with the first defendant (Mr Vincenzo Noto), second defendant (Mr Giuseppe Noto) and third defendant (Ms Graziella Granata) – her step-children – each of whom owned a one-sixth interest in the property.
In accordance with the Consent Orders entered on 17 March 2022: trustees for the sale of the Smithfield property were appointed; the sale was conducted; and the proceeds thereof, totalling around $757,468.53, have since been proportionately distributed to the parties.
Regrettably, Ms Widjaja and Mr Vincenzo Noto are in dispute as to who should bear the parties’ costs incurred to date. Mr Giuseppe Noto and Ms Granata, consistently with their general approach to this litigation, have not sought to involve themselves in this outstanding controversy between their step-mother and their brother.
In my opinion, having considered the submissions provided by the plaintiff (dated 14 September 2022, and 21 October 2022 in…

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 Widjaja v Noto

Details

AGLC: Widjaja v Noto [2022] NSWSC 1446
Case: [2022] NSWSC 1446
Decision Date: 24 October 2022

CaseChat Overview and Summary

Widjaja v Noto involved a dispute between co-owners over the costs of proceedings initiated under section 66G of the Conveyancing Act 1919 (NSW). The resolution of these proceedings resulted in consent orders, and the sale proceeds of the jointly owned property had already been distributed. The central issue was whether the court should make a costs order against one of the defendants, either under rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) or due to what was considered unreasonable conduct.

The court carefully examined the circumstances leading to the consent orders and the distribution of the sale proceeds. It considered whether the first defendant's conduct warranted a costs order under rule 42.1, which applies to cases where a party unreasonably conducts the proceedings. The court found that the first defendant's conduct did not meet the threshold for such an order. Additionally, the court did not find the conduct unreasonable enough to justify an order for costs of the costs application. The court concluded that there should be no order as to the costs of the proceedings, including the costs of the costs application, as the overall circumstances did not support such an order.

Orders