Wallis v Rudek [2020] NSWSC 1618

Supreme Court New South Wales

Medium Neutral Citation: Wallis v Rudek [2020] NSWSC 1618 Hearing dates: 12 November 2020 Decision date: 12 November 2020 Jurisdiction: Equity Before: Kunc J Decision: Plaintiffs to withdraw caveat; Defendant's costs assessed as a gross sum; Funds in Court to be paid to defendant subject to no claim being made by Commonwealth Catchwords: COSTS – Party/party – Bases of quantification – Whether costs orders to be partly satisfied by funds held in Court Legislation Cited: Civil Procedure Act 2005 (NSW) Real Property Act 1900 (NSW) Cases Cited: Wallis v Rudek [2020] NSWSC 162 Wallis v Rudek (No 2) [2020] NSWSC 215 Wallis v Rudek (No 3) [2020] NSWSC 338 Wallis v Rudek [2020] NSWCA 61 Wallis v Rudek (No 2) [2020] NSWCA 175 Wallis v Rudek [2020] NSWCA 207 WLD Practice Holdings v Sara Stockham [2020] NSWSC 1354 Category: Procedural and other rulings Parties: Yuri Wallis (First Plaintiff) Olga Wallis (Second Plaintiff)

Suzanne Rudek (Defendant) Representation: Counsel:

J R Bennett (Defendant)

Solicitors:

Y and O Wallis (In person) Optic Lawyers (Defendant) File Number(s): 2018/191080 Publication restriction: No

EX TEMPORE Judgment (REVISED) 1. The Court has before it today two notices of motion listed for a hearing of not more than three hours. The first notice of motion was filed by the plaintiffs (to whom I shall refer as "the Wallises") on 8 September 2020 and seeks: "1. That pursuant to Order 2 made on 5 March 2020 in these proceedings that: - (a) the sum of $ 9,045.45 be paid from the Judgment Sum paid into Court to the "Department of Human Services"; (b) That the sum of $115,235.30 be paid from the Judgment Sum paid into Court to "P Dobrich & Co solicitors Law Practice Trust Account" forthwith. 2. The mater matter be dealt with in Chambers. 3. That the orders be entered forthwith." 1. The second notice of motion was filed on 28 September 2020 for the defendant (to whom I shall refer as "Ms Rudek" and for whom Mr J R Bennett of Counsel appeared) and seeks: "1. The Plaintiffs' motion filed 15 September 2020 be dismissed. 2. That the Caveat XXXXXXXX lodged in respect of the property at XXX Pennant Hills, NSW 2120 being the land comprise in folio identifier X/XXXXXX by the Plaintiffs, be withdrawn. 3. In the alternative, that the Plaintiffs are to do all things necessary to effect a withdrawal of the Caveat XXXXXXXX referred to in Order 2. 4. That to the extent it is necessary, service of this application for the purpose of the above orders is dispensed with under s 74MA(2) of the Real Property Act 1900. 5. Declaration that all belongings and chattels remaining on the property at the date of this Order are property of the Defendant and that the Defendant is at liberty to dispose of these belongings and chattels as she sees fit. 6. Declaration that to the extent that any belongings and chattel referred to in the above order are or were previously the property of the Plaintiffs, these have been abandoned by the Plaintiffs and are the property of the Defendant. 7. On the undertakings noted at 1 (b) and (c) of the Orders made by White JA on 7 April 2020, the judgment sum paid into Court by the Defendant not be released to the Plaintiffs until the payments to the Defendant contemplated in the orders 8, 9, 10, 11, 12 and 13 below are made, 8. On the undertaking noted at 1 (b) in the Orders made by White JA on 7 April 2020. the Defendant is to have released to her the sum of $7,800,00 being the sum payable to her under that undertaking, from the judgment sum paid into Court by the Defendant. The funds are to be paid into "Optic Lawyers Law Practice Trust Account''. 9 The Plaintiffs are to pay the Defendant's costs of these proceedings and the Appeal proceedings No 2020/95805, including costs of the motions filed 15 and 28 September 2020 on a gross sum basis in the amount of $168,221,86, Such payment is to be made by way of release of the balance of funds from the judgment sum paid into Court by the Defendant and paid into "Optic Lawyers Law Practice Trust Account', with the balance to be payable by the Plaintiffs forthwith. 10. In the alternative to Order 9, if the Court does not order the payment of costs on a gross sum basis, that: a. the Court notes that the Defendant is at liberty to apply to the manager, costs assessment for assessment of the costs contemplated by order 9; b. the balance of the judgment sum paid into Court by the Defendant, after payment of the amount contemplated by order 8 above, continue to be held m Court as security for costs and payable to the Defendant after assessment and filing with the Court of a certificate of costs issued by a costs assessor in respect of those costs. 11 That the Plaintiffs pay the Defendant the sum of $723.46 for the costs the Defendant will incur in removing the caveat as noted at order 2. 12, That the Plaintiffs pay the Defendant the sum of $3,539.43 which is increasing by $26,29 per day in interest on the Defendant's legal costs. 13. That the Plaintiffs pay the costs of the Defendant on this motion on the indemnify basis. 14 In the alternative to order 13. Plaintiffs pay the costs of the Defendant on this motion on the ordinary basis." 1. Stepping back for a moment from the detail of the motions, what is really being decided by the Court today are the final consequences of an unhappy dispute between the Wallises and their daughter Ms Rudek, which has already been the subject of several judgments at first instance and on appeal: Wallis v Rudek [2020] NSWSC 162; Wallis v Rudek (No 2) [2020] NSWSC 215; Wallis v Rudek (No 3) [2020] NSWSC 338; Wallis v Rudek [2020] NSWCA 61; Wallis v Rudek (No 2) [2020] NSWCA 175; Wallis v Rudek [2020] NSWCA 207. 2. In summary, the Wallises claimed that they sold their property in Pennant Hills in which they lived (the "Property") to Ms Rudek on terms that would allow the Wallises to continue to reside indefinitely in part of the Property. The effect of the decision at first instance of Parker J, and then of the Court of Appeal upholding his Honour's decision, is that the Wallises failed in the substantive part of their claim. However, they had limited success in one respect. As a condition of the relief which Parker J gave to Ms Rudek (possession of the Property), Ms Rudek was required to do equity by paying into Court a sum of $124,287.75 (the "Judgment Sum"). That has been done. One issue before the Court today was whether, rather than being paid to the Wallises, that money should be applied, in particular, to Ms Rudek's costs. 3. After setting out the reasons why I refused a last minute adjournment application by the Wallises, I will deal issue by issue with the matters that were raised by the two motions.