D Capital 2 Pty Ltd v Western (No 2) [2022] NSWSC 1283

Supreme Court New South Wales

Medium Neutral Citation: D Capital 2 Pty Ltd v Western (No 2) [2022] NSWSC 1283 Hearing dates: 26 August 2022; Further submissions 29, 30, 31 August 2022, 2, 5 September 2022 Decision date: 23 September 2022 Jurisdiction: Equity - Real Property List Before: Meek J Decision: See final paragraph of judgment Catchwords: PRACTICE — Direction for parties to bring in proposed short minutes of order to give effect to the reasons for judgment — Various sets of proposed orders — Duty of practitioners to assist Court to present materials to the Court in a form which clearly identifies to the judge the orders that are agreed and a concise listing of the outstanding disputed issues. PRACTICE — Sets of submissions provided by each of parties in evolving circumstances leading to refinement of some issues and abandonment of other issues — Duty of practitioners to assist Court to clearly identify which submissions are ultimately relied upon without Court being left to task of attempting to identify whether there are remnants of matters still contended for in earlier submissions ORDERS — Inadvertent mistake by solicitor including reference to an individual party as being jointly liable to pay a costs order payable by a corporation — No dispute that mistake inadvertent — Order opposed by other parties who seeks nonetheless to make individual jointly liable — Inadvertent mistake falls within the concept of the order being "irregularly" for purposes of r 36.15 Uniform Civil Procedure Rules 2005 (NSW) — Order set aside PRACTICE — cases of inadvertent mistake are quintessentially an occasion for parties and legal representatives to reflect upon their duties to the Court to assist the Court to further the overriding purpose of facilitating a just, quick and cheap resolution of the real issues in the proceedings COSTS — Claims for indemnity costs — Principles — No real compromise — Reasons to order otherwise COSTS — Claims for third party costs orders that third-party indemnify other parties for costs of corporate entity — Claims based on Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28 — An agreement in place for security for costs is a relevant consideration to claims for sole director shareholder to indemnify other parties for costs of corporate entity EVIDENCE — Notice to Admit Facts — Request framed that plaintiff was not ready, willing and able to complete contracts — Complicated question involving consideration of many facts and pieces of evidence and informed by principles of law and construction of documents — Practitioners ought to reflect upon utility of seeking admission of 'facts' on what are essentially multifaceted ultimate issues SECURITY FOR COSTS — Requests by parties for directions to release funds held pursuant to agreement for security for costs — No basis for interfering with or cutting across the terms of the agreement between the parties ORDERS — Post judgment claim pursuant to r 36.1 Uniform Civil Procedure Rules 2005 (NSW) by single vendor who had not filed any cross-claim to have order made for return of deposit in reliance upon findings regarding other successful vendors who had filed cross-claim — No evidence from vendor explaining his decision not to seek any such relief — Possibility of considered forensic decision not to risk costs — Claim denied Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 90, 98 Conveyancers Licensing Act 2003 (NSW) Conveyancers Licensing Regulation 2021 (NSW), sch 2 Legal Profession Uniform Law Application Act 2014 (NSW), s 74 Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 36.15, 36.1, 36.16, 42.1, 42.2, 42.8, 42.14, 42.15, 42.20, Pt 36, Pt 42 Cases Cited: Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 BSA Advanced Property Solutions (Fire) Pty Ltd v Ventia Australia Pty Ltd [2022] NSWCA 82 Bullock v London General Omnibus Co [1907] 1 KB 264 Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333 D Capital 2 Pty Ltd v Western [2022] NSWSC 1064 Devenish v Jewel Food Stores Pty Ltd (1990) 64 ALJR 533 DIF III – Global Co-Investment Fund LP v Babcock & Brown International Pty Limited (No 2) [2019] NSWSC 1578 Dimitrovski v Australian Executor Trustees Ltd [2013] NSWSC 337 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 31 ALR 397 FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340 Furber v Stacey [2005] NSWCA 242 GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688, (2003) 201 ALR 555 Ghougassian v Fairfax Community Newspaper Pty Ltd [2015] NSWCA 307 In the matter of Black Tie Holdings Pty Ltd (No 2) [2022] NSWSC 856 In the matter of Wetherill Park Holdings Pty Ltd (No 2) [2021] NSWSC 1397 Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28 Lahoud v Lahoud [2006] NSWSC 126 LanelIi v Hancock t/as Hancocks Solicitors [2012] NSWSC 417 Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 Leichardt Municipal Council v Green [2004] NSWSC 341 Leighton Contractors Pty Ltd v CE Heath Underwriting & Agency Services (1995) 8 ANZ Ins Cas 61-231; (1994) 12 BCL 415 Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528 May v Christodoulou (2011) 80 NSWLR 462; [2011] NSWCA 75 Meres v Meres (No 2) [2017] NSWSC 523 Metro Chatswood Pty Ltd v CRI Chatswood Pty Ltd [2007] NSWSC 1120 Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 PM Works Pty Ltd v Management Services Australia Pty Ltd [2018] NSWCA 168 Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) [2004] FCA 1437; (2004) 212 ALR 281 Regency Media Pty Ltd v AVV Australia Pty Ltd [2009] NSWCA 368 Rushton (Qld) Pty Ltd v Rushton (NSW) Pty Ltd [2004] QSC 47 Sanderson v Blyth Theatre Co [1903] 2 KB 533 Sent v Jet Corp of Australia Pty Ltd (1984) 2 FCR 201 Shellharbour City Council v Johnson (No 2) (2006) 67 NSWLR 308; [2006] NSWCA 114 Shorten v David Hurst Constructions Pty Ltd [2008] NSWSC 609 Vestris v Cashman (1998) 72 SASR 449 Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276 Texts Cited: G E Dal Pont, Law of Costs (5th ed, 2021, LexisNexis) Ritchie's Uniform Civil Procedure NSW Category: Consequential orders Parties: D Capital 2 Pty Ltd (Plaintiff) Elisa Kim Western (First Defendant / First Cross-Defendant) Kane Bruce Parker (Second Defendant / First Cross-Claimant) Andrew Tuck Whye Hew (Third Defendant / Second Cross-Claimant) Daniel Young (Fourth Defendant / Third Cross-Claimant) Joanne Therese Hopwood (Fifth Defendant / Fourth Cross-Claimant) MALK Property Pty Ltd (Sixth Defendant / Fifth Cross-Claimant) Jason Luke Szepes (Seventh Defendant / Sixth Cross-Claimant) Daniel Gordon O'Connell (Eighth Defendant / Seventh Cross-Claimant) Zaher Tayyar (Nineth Defendant) Step by Step Conveyancing Pty Ltd (Tenth Defendant / Second Cross-Defendant) Wayne Danckert (Third Cross-Defendant) Representation: Counsel: G W Stapleton (Plaintiff and Third Cross-Defendant) F Corsaro SC / D A Allen (First and Eighth Defendants) A D Crossland (Second to Seventh and Nineth Defendants) D J Maccallum (solicitor) (Tenth Defendant) Solicitors: HFW Australia (Plaintiff and Third Cross-Defendant) Avondale Lawyers (First and Eighth Defendants) Watson Law (Second to Seventh and Nineth Defendants) Maccallum Lawyers (Tenth Defendant) File Number(s): 2021/257791