Wilkes v Bykowski (No. 2)

[2016] NSWSC 1828

Supreme Court

New South Wales

Medium Neutral Citation:

Wilkes v Bykowski (No. 2) [2016] NSWSC 1828

Hearing dates:

15 December 2016

Date of orders:

15 December 2016

Decision date:

15 December 2016

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. The Plaintiff is granted leave to issue a Writ of Possession in respect of the whole of the land in Folio Identifier 1/587234 situated at Lane Cove and known as 50A Bridge Street, Lane Cove, in the State of New South Wales, such writ not to be executed before 27 January 2017.

 

2. The Defendant is to pay the Plaintiff's costs of the proceedings on the ordinary basis.

 3. Liberty to apply on 2 days’ notice.

Catchwords:

REAL PROPERTY – possession of land – writ to enforce judgment

  PROCEDURE – costs – offer in the form of Calderbank offer – whether offer contained any element of compromise – not unreasonable for offer not to have been accepted

Cases Cited:

Calderbank v Calderbank [1975] Fam 93; [1975] 3 All ER 333
Leichhardt Municipal Council v Green [2004] NSWCA 341
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
Wilkes v Bykowski [2016] NSWSC 1685

Category:

Procedural and other rulings

Parties:

Leonie Margaret Wilkes (Plaintiff)
Joseph Bykowski (Defendant)

Representation:

Counsel:
P Afshar (Plaintiff)
B Levet (Defendant)

  Solicitors:
Blackman Legal (Plaintiff)
Kinghan & Associates (Defendant)

File Number(s):

2015/194393

Judgment

1 I gave judgment in this matter on 1 December 2016; that was a judgment for possession only: Wilkes v Bykowski [2016] NSWSC 1685. The matter was re-listed today so that issues relating to the execution of the judgment could be agitated.

2 The Plaintiff has sought an order that she be granted leave to issue a writ of possession to enforce the judgment of the Court and that it be executed forthwith. The Defendant does not resist the issue of a writ of possession, but initially sought a period of 60 days before that writ could be executed.

3 As a practical matter and, particularly, given the time of the year, any such writ would not, in fact, be executed for at least four to five weeks after it is issued from the Court Registry. In those circumstances, I consider it appropriate that the Defendant should have a six week period to vacate the property. The draft orders provided to me will be amended to provide that the writ is not to be executed before 27 January 2017.

4 The Plaintiff also seeks indemnity costs in relation to the summary judgment application. That arises from a letter sent by her solicitors to the Defendants solicitors on 17 October 2016. That letter traversed a number of matters, including reasons why it was said the summary judgment application would not be successful. The letter concluded by saying that:

“Our client considers that your client has no real prospects of succeeding in his application [that is, to cross-vest the proceedings in this Court to the Family Court] or to defend the summary judgment application. If your client continues with this application and if our client is forced to apply for summary judgment, our client will rely on this correspondence to seek her costs of these applications on the indemnity basis".

5 The letter was written on an open basis, but the principles that should be applied are those that would be applied to a letter sent on a without prejudice basis, relying on the decision in Calderbank v Calderbank [1975] Fam 93; [1975] 3 All ER 333.

6 The Court of Appeal in this state has emphasised, however, that offers which are made to another party and which involve no element of compromise would ordinarily not result in an indemnity costs order for the successful party. Those decisions include Leichhardt Municipal Council v Green [2004] NSWCA 341 at [59]; Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 and Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344.

7 I am not satisfied that there is any element of compromise contained in the letter. It simply required the Defendant to capitulate.

8 The further matter is that there was a serious legal issue to be resolved, as is apparent from my judgment of 1 December 2016. I say that notwithstanding that, by the date of the letter of 17 October 2016, the issue of the registrar's so-called order had not been raised by the Defendant. I am not satisfied that it was unreasonable for the Defendant not to have accepted the offer made in that letter.

9 The Plaintiff's costs of the summary judgment application and the proceedings should be ordered to be paid on the ordinary basis only.

10 Accordingly, the orders that I make are these:

1.    The Plaintiff is granted leave to issue a Writ of Possession in respect of the whole of the land in Folio Identifier 1/587234 situated at Lane Cove and known as 50A Bridge Street, Lane Cove, in the State of New South Wales, such writ not to be executed before 27 January 2017.

2. The Defendant is to pay the Plaintiff's costs of the proceedings on the ordinary basis.

3. Liberty to apply on 2 days’ notice.

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Decision last updated: 15 December 2016