Onza Industries Pty Ltd as Trustee for the Plath Family Discretionary Trust v Tingalpa Tyre and Mechanical Pty Ltd (No 2) [2022] NSWSC 1679

Supreme Court New South Wales

Medium Neutral Citation: Onza Industries Pty Ltd as Trustee for the Plath Family Discretionary Trust v Tingalpa Tyre and Mechanical Pty Ltd (No 2) [2022] NSWSC 1679 Hearing dates: 30 November 2022 Decision date: 08 December 2022 Jurisdiction: Equity Before: Peden J Decision: Defendant to pay the plaintiff's costs on an indemnity basis as agreed or assessed. Catchwords: COSTS — Party/Party — Bases of quantification — Indemnity basis — Where costs concern issue of a lapsing notice and proceedings seeking extension of a caveat — Where costs order sought is against litigant in person Legislation Cited: Civil Procedure Act 2005 (NSW) s 98(1) Cases Cited: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Oshlack v Richmond River Council (1998) 193 CLR 72 Category: Costs Parties: Onza Industries Pty Ltd as Trustee for the Plath Family Discretionary Trust (Plaintiff) Tingalpa Tyre and Mechanical Pty Ltd (Defendant) Representation: Counsel: D Lang, solicitor (Plaintiff) I Plath (Defendant, in person)

Solicitors: Lewis & McNamara Solicitors (Plaintiff) File Number(s): 2019/13432 Publication restriction: Nil

Judgment 1. Tingalpa Tyre and Mechanical Pty Ltd, the defendant, and Onza Industries Pty Ltd, the plaintiff, were in dispute about title to a property in Aberdeen, New South Wales, being section 2, DP758003 and the land contained in Certificate of Title Folio Identifier 2/2/758003 (Property). 2. That title dispute was litigated to finality in the Queensland Supreme Court with the outcome that the plaintiff is now the registered owner of the Property (as trustee). The defendant unsuccessfully appealed the order to the Queensland Court of Appeal and was unsuccessful in obtaining special leave to appeal to the High Court. 3. The current proceedings only concerned the plaintiff's 2019 application to extend a caveat, pending the outcome of the Queensland litigation. What now remains is the issue of costs of these proceedings, which were reserved pending the resolution of the Queensland litigation. 4. In July 2006, the defendant purchased the Property. At that time, and still today, Mr Ira Plath is the director of the defendant and has represented the defendant in these proceedings himself without legal representation. 5. The evidence and Court file discloses the following facts, which were not challenged by the defendant. 6. On 1 July 2006, the Property was vested in a trust known as the Plath Family Discretionary Trust (the Trust). The Trust was created by a deed dated 1 July 2006 between Robert Edward Ward as Settlor, the defendant as Trustee, and the defendant's brother, Ondra Zavier Plath, as Appointor. 7. On 4 December 2014, Ondra Plath exercised a power in the Deed of Trust to remove the defendant as trustee and appoint the plaintiff in substitution. 8. On 25 July 2015, the plaintiff notified the defendant of the change of trustee and sought the certificate of title for the Property so the change of trustee could be recorded. The defendant did not provide the certificate of title. 9. On 27 April 2016, the plaintiff registered a caveat on the title. The particulars of the estate or interest claimed were: Entitlement to the legal interest in the land as trustee, under appointment of trustee, dated 4th December 2014. The facts said to support that interest were identified as: … on 4/12/2014 Tingalpa Tyre and Mechanical Pty Limited was removed as trustee of the Plath Discretionary Trust and in its place, Onza Industries Pty Limited was appointed as the new Trustee of the Plath Discretionary Trust. 1. Later that year, the plaintiff commenced the Queensland litigation seeking a declaration of ownership of the Property. 2. On 8 January 2019, the defendant issued a lapsing notice to the plaintiff. 3. On 22 January 2019, these proceedings were commenced by the plaintiff seeking an extension of the caveat. 4. At the hearing on 22 January 2019 there was no appearance for the defendant. The Court ordered that the caveat be extended until further order of the Court and the question of costs was reserved. However, the Court also ordered: 3. Reserve to the defendant liberty to apply for [the order extending the caveat] to be discharged or varied. 4. Order that on any such application made by the defendant pursuant to that grant of leave, the plaintiff bear the onus of persuading the court that [the caveat] should continue in operation. 5. Note that the plaintiff's claim to an estate or interest in the land the subject of [the caveat] is presently the subject of proceedings [in the Supreme Court of Queensland]. 6. Order that the plaintiff serve a copy of the orders on the defendant no later than 25 January 2019 by: (a) Service of a copy of the orders on the registered office of the defendant; and (b) Dispatch of an email… addressed to Ira Plath at [email address]. 1. No issue has been raised by the defendant that it did not receive those orders as was contemplated by the Court. I note that the email identified in order 6(b) is the same email that Mr Ira Plath continues to use when communicating with the Court. At no time did the defendant seek to clarify the meaning of the liberty or exercise the liberty to apply to vary or discharge those orders. 2. The matter was stood over in this Court on various occasions until the completion of the Queensland litigation. 3. On 7 January 2021, the Supreme Court of Queensland made an order vesting the land in the plaintiff. That decision has not been overturned. 4. Thereafter, the plaintiff has transferred the title of the Property into its name and the caveat became redundant. 5. The parties were ordered to provide written submissions on the question of costs. After agreeing that the issue ought to be determined on the papers, Mr Plath, contacted chambers and sought an oral hearing in this way: Disregard what I agreed to in court this morning as I think that it is my best interest to listen to what Justice Peden has to say for it would be better for me argue my point for Justice Peden does not know the history behind all the Lies, I am asking for a Court date to appear in person in Sydney to argue my case as Justice Peden will notibly [sic] order against me. 1. As a matter of fairness, that request for an oral hearing was acceded to, despite the previous consent position. 2. At the oral hearing I explained to Mr Plath that the only issue I was going to determine was the reserved costs of these proceedings, which had only concerned the plaintiff's application to extend the caveat pending the Queensland litigation being finalised, and that I had not pre-determined the matter. I indicated that I would only have regard to the material the parties had brought before me on the issue of costs, and not any material in the Queensland litigation. Mr Plath accepted that I did not have jurisdiction to revisit the previous decisions made in the Queensland litigation. Notwithstanding that acceptance, Mr Plath did orally address the Court in detail concerning the Queensland litigation on the basis that it elucidated the type of person the plaintiff was and that he perceived a costs order would be unfair. 3. Mr Plath also provided a copy of the Queensland Supreme Court's decision at first instance, which I took as background information only. 4. At the oral hearing, Mr Plath made submissions in addition to the written submissions, as outlined below.