WILLIAMS v Howell

[2000] WASC 174

WILLIAMS -v- HOWELL & ORS [2000] WASC 174

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 174
Case No:	CIV:1646/2000	Heard:	29 JUNE 2000
Coram:	MASTER BREDMEYER	Delivered:	4/07/00
No of pages:	6	Judgment Part:	1 of 1
Result:	Costs apportioned
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Parties:	MARK WILLIAMS IAN ARTHUR HOWELL JANICE ANNE HOWELL ROBERT FREDERICK PHILLIPS DOROTHY JEAN PHILLIPS
Catchwords:	Costs Interpleader summons Whether brought reasonably or not
Legislation:	Nil
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : WILLIAMS -v- HOWELL & ORS [2000] WASC 174 CORAM : MASTER BREDMEYER HEARD : 29 JUNE 2000 DELIVERED : 4 JULY 2000 FILE NO/S : CIV 1646 of 2000 BETWEEN : MARK WILLIAMS

Plaintiff

AND

IAN ARTHUR HOWELL
JANICE ANNE HOWELL
ROBERT FREDERICK PHILLIPS
DOROTHY JEAN PHILLIPS
Defendants

Catchwords:

Costs - Interpleader summons - Whether brought reasonably or not

Legislation:

Nil

Result:

Costs apportioned

(Page 2)

Representation:

Counsel:

Plaintiff : Ms H L Marshall
Defendants : Mr P Monaco

Solicitors:

Plaintiff : Butcher Paull & Calder
Defendants : Godfrey Virtue & Co

Case(s) referred to in judgment(s):
Nil

Case(s) also cited:

Nil

(Page 3)

1 MASTER BREDMEYER: This is an application by the defendants dated 12 June 2000 for interpleader relief in respect of goods seized by the defendants from premises at Lot 18 Barfield Road, Banjup, on 12 May 2000. Those goods were seized pursuant to a writ of possession made by this Court in CIV 1875 of 1999 in which the defendants in this action were the plaintiffs (mortgagees) and Colin David Sullivan was the defendant (mortgagor). The property at Lot 18 Barfield Road is owned by Mr Sullivan and he defaulted under a mortgage to the present defendants. The property was leased to the plaintiff in this action, Mark Williams.

2 The matter came on before me on 23 June 2000. I gave reserved reasons a few days later in these terms:

"The defendants have applied by chamber summons, filed 12 June 2000, for interpleader relief in respect of goods taken by them from a property at Lot 18, Barfield Road, Banjup. This application will be dismissed with costs reserved.

I have read the papers carefully and do not consider that there are other claimants who have an interest, or an arguable interest in the goods that need to be heard. Colin Sullivan, who may have an interest in them, has by affidavit "released" the goods into the custody of the plaintiff. His mother has no interest in the goods. The New Zealand man who left some goods with the plaintiff does not have an adverse interest to the plaintiff's possession of those goods. He left the goods with the plaintiff, presumably on bailment, so if the goods are lost he can seek redress from the plaintiff.

I will relist the application for the interlocutory injunction on Thursday 29 June at 11.30am. If the parties do not wish to pursue that application then they should confer about that if they want to seek some other orders then they should exchange minutes and confer together beforehand, see O 59 r 9. If the parties want me to hear the application for the interlocutory injunction I require consent as that is otherwise outside a Master's jurisdiction."

3 On 29 June 2000 the following orders were made to give effect to my reasons:

"1. There being no other claimants who have an interest or an arguable interest, pursuant to Order 17 Rule 2(1) the defendants release to the plaintiff the goods taken into

(Page 4)

possession from Lot 18 Barfield Road, Banjup ('the goods') by the defendants on 12 May 2000 pursuant to the writ of possession made in proceedings numbered CIV 1875 of 1999 in the Supreme Court of Western Australia.

2. …

3. The application dated 9 June 2000 will be dismissed."

4 I reserved on the question of costs. The defendants seek the costs of the application. They say it was reasonable to bring the application in the circumstances known to them. There were, they say, other possible claimants to the goods apart from Mr Williams, namely Mr Sullivan, Mr Sullivan's mother and, according to a note of a telephone conversation between Mr Williams and Mr Ian Howell, one of the defendants, a "very large and nasty Fijian". The plaintiffs say that the application was brought unreasonably, that there were no serious claimants to the goods apart from Mr Williams and they seek the costs of the application.

5 When this application for interpleader relief was brought there were already a number of affidavits before the court. These included an affidavit of Mr Williams sworn 2 June, and one of Mr Sullivan sworn 8 June, and one of Mr Aitken, a solicitor acting for the defendants, sworn on 7 June. Mr Aitken's affidavit at p 41 quotes a telephone call from Mr Williams, saying that "some stuff is Sullivan's". At p 13 he quotes an affidavit from Mr Sullivan stating that

"My mother, Beryl Jean Sullivan, of Bundadoon NSW holds a bill of sale over both properties, since she loaned me a sum of money four years ago to reduce the amount of a mortgage held at that time."

At p 46 of that affidavit is a record of a conversation between Mr Sullivan and Mr Howell which includes this:

"Sullivan called me again a few nights ago to inform me that some of the furniture at Banjup was owned by a very large and nasty Fijian who would not be impressed at the course of action I was taking."

So all that is evidence of the three other claimants. However, the affidavit of Mr Sullivan mentioned at par 7 releases into the custody of Mark Williams any items which were in the house or large shed (double garage) at Lot 18 Barfield Road, Banjup on 12 May 2000 or subsequently there or

(Page 5)

at other locations. That absolves the defendants from any potential claims from Mr Sullivan. The affidavit also stated:

"My mother, Beryl Jean Sullivan, of Bundadoon NSW does not have a bill of sale over the contents of (possessions within) either property referred to in Supreme Court CIV 1875 of 1999 and therefore will be making no claim to any of them".

That indicates that she has no real claim to ownership.

6 The affidavit of Mr Sullivan also states:

"I am aware that Mark Williams was minding some possessions of one of his friends, who is currently in New Zealand and cannot depose an affidavit."

This may be a reference to the "Fijian". On the day that the interpleader summons was filed, but after the filing, the plaintiff's solicitor sent a fax to the defendants' solicitor in these terms:

"We refer to the above matter and the Plaintiff's adjourned injunction application.

We refer to the order that your clients issue interpleader proceedings forthwith and note that Andrew William Johnson who owns some of the goods that were in the Plaintiff's possession prior to the Warrant being executed and would, therefore, have a right to be heard, is currently in New Zealand.

In the circumstances the plaintiff is prepared to continue to keep in his custody those goods belonging to Mr Johnson and indemnify your clients against any claims arising from loss and damage that may occur whilst they are in the Plaintiff's possession subsequent to their release to him.

If you have any queries in relation to the above please contact the writer."

7 I consider that, subject to clarification from the plaintiff that Mr Johnson was the same person referred to by Mr Sullivan as the Fijian, the offer of an indemnity was significant. It meant that Mr Williams would indemnify the defendants to any claims for loss (in effect, from claims to ownership or possession) made by Mr Johnson. This letter came after the filing of the summons but before the hearing date. The interpleader should then have been resolved without court appearances by obtaining a written indemnity from the plaintiff. The failure to do so has a

(Page 6)

bearing on costs. I will order the plaintiff to pay the defendants' costs of preparing, filing and serving an interpleader summons, to be taxed if not agreed. I will order the defendants to pay the plaintiff's costs of the court appearances on 23 or 29 June 2000, to be taxed if not agreed.