New South Wales Supreme Court CITATION : Boghossian v Warner [1999] NSWSC 220 revised - 31/08/99 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 2772/98 HEARING DATE(S) : 22 March 1999 JUDGMENT DATE : 22 March 1999 PARTIES : Paul Boghossian (P) Peter George Warner (D) JUDGMENT OF : Master McLaughlin COUNSEL : Mr. D. Ronzani (P) SOLICITORS : Church & Grace (P) Cowley Herne (D) CATCHWORDS : ACTS CITED : Conveyancing Act 1919 DECISION : See paragraph 13 - 4 - SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MASTER McLAUGHLIN Monday, 22 March 1999 2772/98 PAUL BOGHOSSIAN -v- PETER GEORGE WARNER JUDGMENT 1 MASTER: This matter has been referred to me by the Registrar. The plaintiff, Paul Boghossian, by summons filed on 16 June 1998, seeks against the defendant, Peter George Warner, pursuant to the provisions of Division 6 of Part 4 of the Conveyancing Act 1919 (and in particular pursuant to section 66G of that Act) an order appointing a statutory trustee for the sale of certain land situate at and known as 100 Adelaide Street, Meadowbank, of which land the plaintiff and the defendant are registered proprietors as tenants in common. 2 The defendant opposes the making of the order sought in prayer 1 of the summons, being an order that the Permanent Trustee Corporation Limited be appointed statutory trustee for sale of the subject land, and seeks an order that the Public Trustee be appointed. The matter was adjourned to enable an expected consent of the Public Trustee to be forthcoming. Apart from a totally illegible document communicated by way of facsimile transmission and said to be some form of conditional consent by the Public Trustee, no such consent from the Public Trustee has been forthcoming. 3 No evidence has been placed before the Court on the part of the defendant explaining the opposition of the defendant to the identity of the proposed trustee referred to in prayer 1 of the summons. In the absence of any such evidence and in the absence of any consent from the Public Trustee, I propose to make an order of the nature sought in prayer 1 of the summons, being for the appointment of the Permanent Trustee Corporation Limited as the statutory trustee. 4 The defendant does not oppose the making of the orders sought in prayers 2, 3, 4 and 5 in the summons, and I propose in due course to make such orders. Prayer 5 contemplates an enquiry and accounting and I propose also to make an appropriate order which will have the effect of providing for such enquiry and accounting to be conducted by a Master. I shall now hear the submissions of the parties concerning the costs of the proceedings to date. 5 [COUNSEL ADDRESSED ON COSTS] 6 As long ago as 2 April 1998, almost a year ago, the defendant was put on notice that if the matter could not be resolved without recourse to litigation the plaintiff would commence proceedings and would seek an order for indemnity costs against the defendant. 7 The proceedings were eventually commenced by summons filed on 16 June 1998. On a number of occasions directions were made by consent by the Registrar. In particular, on 26 October 1998 the Registrar made directions concerning the filing of any defence and cross-claim by 2 November 1998. The defendant did not file such a defence and cross-claim by 2 November 1998. Indeed, despite assurances by his solicitor that the defence and cross-claim would be "filed shortly" (made as late as 29 November 1998), and that the defendant's evidence would be filed on or before 14 December 1998, the defendant has chosen never to file a defence or a cross-claim. 8 I am informed by the solicitors for the defendant that the defendant's instructions in that regard were subsequently changed. Nevertheless the defendant's solicitors did not have the courtesy to communicate that change of instructions to the plaintiff's solicitors. 9 The matter was on 1 February 1999 adjourned to 9 February, to enable the parties to discuss a possible settlement. On that latter date it was again adjourned, to 22 February 1999, to enable the parties to continue settlement negotiations. On 22 February the matter was adjourned to 22 March, being this day, to enable the parties to further explore settlement. 10 The Registrar was informed on 22 November that if settlement had not occurred before 22 March the plaintiff would be asking the Court to make orders in accordance with paragraphs 1 to 4 in the summons, on the basis that no evidence or cross-claim had been filed by the defendant suggesting defence or opposition to such course. No such defence or evidence has ever been filed. 11 The plaintiff seeks an order that the defendant pay the costs of the plaintiff. The defendant opposes that order and submits that the appropriate order which should be made is an order of the nature of that normally made in applications under section 66G of the Conveyancing Act, being an order that the costs of each party be paid out of the proceeds of the sale of the subject property. 12 The events which I have already recounted, including the relevant procedural history of this matter, are in my view sufficient to justify a departure from the usual costs order made in such cases. Although the plaintiff foreshadowed as long ago as 2 April 1998 that an application would be made for an order for the defendant to pay his costs on the indemnity basis, the plaintiff now seeks only an order that the defendant pay his costs on the party and party basis. I am satisfied that the facts and circumstances of this case justify such an order. I will add to paragraph 4 in the proposed short minutes the words "such costs to be on the party and party basis". 13 I make the following orders: 1. I make orders as in paragraphs 1, 2, 3 and 4 in the Short Minutes of Order dated 22 March 1999 initialled by me and filed in Court this day. 2. I stand the matter over to Monday 21 June 1999 before the Registrar for the making of directions in respect to the hearing contemplated by paragraph 2 in the Short Minutes. ********** Last Modified: 06/30/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.