David Ian Mansfield, the Trustee of the Property of Thi Ngoc Hahn Son, A Bankrupt v Tia [2021] NSWSC 1080

Supreme Court New South Wales

Medium Neutral Citation: David Ian Mansfield, the Trustee of the Property of Thi Ngoc Hahn Son, A Bankrupt v Tia [2021] NSWSC 1080 Hearing dates: On the papers Date of orders: 26 August 2021 Decision date: 26 August 2021 Jurisdiction: Equity Before: Darke J Decision: Orders that the proceedings be dismissed. Defendant ordered to pay half of the plaintiff's costs of the proceedings. Catchwords: CIVIL PROCEDURE – dismissal of proceedings – plaintiff appointed as trustee of a bankrupt's estate and thus became co-owner of real property with defendant – plaintiff commenced proceedings to sell property pursuant to section 66G of the Conveyancing Act 1919 (NSW) – parties entered into Deed of Sale in relation to the property – property sold – no longer any utility to the proceedings – proceedings dismissed COSTS – departure from the usual order – usual position that costs of section 66G application are paid out of proceeds of sale – property sold pursuant to Deed of Sale – plaintiff seeks costs – whether defendant acted unreasonably in failing to respond to plaintiff's attempts to negotiate – held that defendant had no obligation to negotiate prior to commencement of proceedings and any delay after commencement of proceedings not shown to be entirely the defendant's fault – defendant seeks no order as to costs – whether Deed of Sale disposed of all issues including as to costs of proceedings – Deed indicated that parties reached no concluded agreement as to costs of proceedings – open to Court to make order as to costs – held that the circumstances do not justify a departure from the usual position that involves a sharing of costs between co-owners – defendant ordered to pay half of the plaintiff's costs COSTS – gross sum order – whether appropriate to make such an order – plaintiff incurred actual costs of $42,511.72 and seeks gross sum order fixed at $32,717.02 – Deed of Sale provided that the parties would bear their own costs in relation to the Deed – some costs claimed by plaintiff appear to relate to preparation of the Deed – held that there is some doubt the Court could fix a fair sum between the parties – defendant should not be deprived of the benefit of a costs assessment – gross sum order not made Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 98(4)(c) Conveyancing Act 1919 (NSW), s 66G Uniform Civil Procedure Rules 2005, r 42.20 Cases Cited: Chow v Chow (No 2) [2015] NSWSC 1348 Harrison v Schipp (2002) NSWLR 738 Kardos v Sarbutt (No 2) [2006] NSWCA 206 Stibbard-Leaver v Leaver [2021] NSWSC 65 Category: Costs Parties: David Ian Mansfield, the Trustee of the Property of Thi Ngoc Hahn Son, A Bankrupt (Plaintiff) Binh Long Tia (Defendant) Representation: Counsel: Mr R A Parsons (Defendant)