New South Wales Supreme Court CITATION : Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 936 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4528/97 HEARING DATE(S) : 8 October 2002 JUDGMENT DATE : 8 October 2002 Alanbert Pty Limited (P1) Bernoth Realty Pty Ltd (P2) PARTIES : Bertram Bernoth (P3) Bulevi Pty Ltd (D1) Davhand Pty Ltd (D2) JUDGMENT OF : Hamilton J COUNSEL : A Fairbairn (P1-3) W Lawrence, a director, by leave (D1 & 2) SOLICITORS : Marsdens (P1-3) W Lawrence, a director, by leave (D1 & 2) CATCHWORDS : PROCEDURE [573] - Costs - Departing from the general rule - Powers of court - Relevant principle - Where different results on distinct claims. LEGISLATION CITED : Supreme Court Act 1970 Part 52A r 11 Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 926 Cumming v Sands [2001] NSWSC 507 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 Domino Hire Pty Ltd v Pioneer Park Pty Ltd (In Liq) [2000] NSWSC 313 CASES CITED : Ell v Cisera [2000] NSWSC 961 Hughes v Western Australian Cricket Association (1986) ATPR 40-748 JDM Investments Pty Ltd v Todbern Pty Ltd [2000] NSWSC 432 Madden as Official Liquidator of Aquanaut Constructions Pty Ltd (In Liq) [2001] NSWSC 1051 Ronnoc Finance Ltd v Spectrum Network Systems Ltd 19 November 1997 NSWSC Santow J unreported Waters v P C Henderson (Australia) Pty Ltd 6 July 1994 NSWCA unreported DECISION : Plaintiffs ordered to pay defendants' costs of one day, otherwise defendants to pay 90 per cent of plaintiffs' costs, both on the indemnity basis. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J TUESDAY, 8 OCTOBER 2002 4528/97 ALANBERT PTY LIMITED & ORS v BULEVI PTY LIMITED & ANOR JUDGMENT 1 HIS HONOUR: On 30 September 2002, I delivered my tenth judgment in this matter: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 926. At [17] I commented unfavourably on the position the plaintiffs were in in relation to the non withdrawal of two caveats on title 13/857632. That situation now appears to be remedied. I have before me the affidavit of Mr G K Anderson, the solicitor in the office of the plaintiffs' present solicitors who has attended to the lodging of a withdrawal of caveat with the Registrar General last Friday, 4 October 2002. Unfortunately, he did not keep a copy which could be brought to Court, but he has now given oral evidence in which I am assured that that withdrawal extended to both the caveats which the plaintiffs had upon the title, being items 12 and 15 in the computer search which is Exhibit A10 before me. The search shows that they have not yet been removed from the record. This is apparently by reason of some complications relating to unregistered transactions which have been lodged. But it seems to me on the basis of that evidence that the plaintiffs have done all they can to withdraw those caveats and, insofar as they are still appearing on the computer search, that is a matter between anybody seeking to deal with the property and the Registrar General. 2 I can, on that basis, proceed to resolve finally the other questions dealt with in my tenth judgment, namely, the formal disposal of the notice of motion, the costs of the motion and the maintenance of the status quo pending the appeal. The orders necessary in the last regard include a stay of the monetary judgment which the plaintiffs have against the defendants and an extension of the injunction which the plaintiffs have to maintain the status quo in relation to the ownership of lot 13. I did indicate when my tenth judgment was delivered that I should not be minded to continue the holding relief in the plaintiffs' favour beyond today unless the withdrawal of the caveats were attended to. I also made a preliminary indication that the appropriate order for costs of the motion may be that there be no order as to costs, bearing in mind that the bringing of the motion by the defendants had been necessitated by the continued presence of the caveats, in relation to which they have been successful, in the sense that the motion has now led to the withdrawal of those caveats, whereas on the other hand the plaintiffs were successful in relation to all the other prayers in the motion. 3 I now turn to those matters seriatim. The first thing that needs to be said is that the motion may totally be dismissed, because the defendants' problem as to the caveats has now been resolved. The only thing that I shall do is that I shall reserve to the defendants liberty to apply. It is unlikely that they will need to do so but, bearing in mind that the title is not yet cleared of the caveats, I shall reserve them that liberty in case any necessity arises. 4 So far as the question of costs is concerned, Mr Lawrence, a director who appears by leave for the defendants, has pressed me to adopt the course that I had in mind that there be no order as to costs, because of the continued trouble the defendants have been put to concerning the caveats. Mr Fairbairn, of counsel for the plaintiffs, on the other hand has pressed on me that that would be so disproportionate in relation to the subject matter of the motion as to be punitive of his clients. Whilst I have expressed disapproval of his clients' tardiness in relation to the withdrawal of the caveats and whilst it may be that they, for a time, could have been said to have been in contempt of the Court's orders, there has been no application before me to punish them for contempt. Now that they have remedied the situation, there is nothing further to be done about that. Mr Fairbairn is certainly right in pointing to the fact that it is not appropriate that the manner in which costs are awarded should be used as punishing the plaintiffs in some indirect way for that conduct, when there has been no application for their direct punishment. Costs in the end are compensatory, not punitive. Mr Fairbairn, whilst recognising the unsatisfactory nature of his clients' conduct in relation to the caveats, has pointed out that that matter took little time in relation to preparation for the notice of motion or the argument that took place on it. He has pointed out that on the other matters there was a great deal of work involved in traversing the complicated interstices of these proceedings. This was necessary to nail the suggestion, that was ultimately nailed, that there had been some inadvertent omission of a claim by them, which may have entitled the defendants to have the judgment against them set aside. I referred in my tenth judgment at [6] to the thorough and useful nature of the written submissions that were prepared by Mr Fairbairn. Whilst there must be some recognition of the fact that the defendants had to bring the motion to have the earlier orders obeyed and some deduction from the order for costs in the plaintiffs' favour to allow for that, the amount of that really must be quite small. The other subject matters of the motion, which took up the great bulk of the time and effort involved, were quite discrete: see generally Supreme Court Rules 1970 Part 52A r 11; Hughes v Western Australian Cricket Association (1986) ATPR 40-748; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261; Waters v P C Henderson (Australia) Pty Ltd 6 July 1994 NSWCA unreported; Ronnoc Finance Ltd v Spectrum Network Systems Ltd 19 November 1997 NSWSC Santow J unreported; and my own decisions in Domino Hire Pty Ltd v Pioneer Park Pty Ltd (In Liq) [2000] NSWSC 313; JDM Investments Pty Ltd v Todbern Pty Ltd [2000] NSWSC 432; Ell v Cisera [2000] NSWSC 961; Cumming v Sands [2001] NSWSC 507; and Madden as Official Liquidator of Aquanaut Constructions Pty Ltd (In Liq) [2001] NSWSC 1051. 5 In my view, the orders that should be made for costs are as follows. The proceedings today flowed entirely from the necessity to pursue the situation relating to the caveats and the plaintiffs ought be ordered to pay the costs of today. That order should be on the indemnity basis, bearing in mind that the hearing today was necessitated by the plaintiffs' very tardy compliance with the orders of the Court. However, as to the rest of the costs there should only a small deduction from the bulk of the costs which should be ordered in the plaintiffs' favour. The order I propose to make is that, apart from the order in relation to today, the defendants ought be ordered to pay 90 per cent of the plaintiffs' costs of the motion and they ought be ordered to pay those costs on the indemnity basis, as has been requested. This order should be made on the indemnity basis for two reasons. The first is that I warned the defendants ahead of time that it was only in quite unusual circumstances that at this very late stage of the proceedings a judgment which had been given would be set aside. Secondly, after that warning, not only did the defendants not demonstrate unusual circumstances which would justify the setting aside of the judgment, but investigation of the matter revealed that the application to set aside the judgment was totally baseless, and baseless for various reasons which were very much in the defendants' camp, relating to the form of their pleading, the evidence led at the trial and the reality that they had solemnly given up long ago the item now sought to be agitated. Those are the reasons why I propose to make the orders for costs that I have outlined. 6 The matter now having reached some finality I shall make the orders for holding the situation that I always had in mind. I shall not make the long term regulation of the situation pending the hearing of the appeal. That, in my view, is properly the function of the Court of Appeal or a Judge of Appeal, who will bear in mind, among other factors, the time at which the Court of Appeal deems it appropriate to deal with this matter and therefore the length of time that the holding situation will be in place. The matter is next before the Registrar of the Court of Appeal on 21 October In my view, the appropriate course to be taken, as the last act of the trial Judge in the matter, is to put the holding regime in place until, say, about a fortnight after that, to permit a Judge of Appeal to be approached if necessary. It seems to me that the appropriate date is 4 November 2002, and I shall therefore grant a stay of the monetary judgments and extend the injunctive relief up to and including that day. 7 The orders of the Court will therefore be as follows: 1 The defendants' notice of motion is dismissed. 2 I order that the plaintiffs pay the defendants' costs of today on the indemnity basis otherwise I order that the defendants pay 90 per cent of the plaintiffs' costs of the notice of motion on the indemnity basis. 3 I stay all monetary judgments in the plaintiffs' favour up to and including 4 November 2002. 4 Upon the plaintiffs by their counsel giving to the Court the usual undertaking as to damages I continue the existing injunctions up to and including 4 November 2002. 5 Liberty to any party to apply on two days notice. 8 If there is any dispute as to what the costs order means, in due course application can be made under the liberty to apply as to the working out of the costs order. Equally, any further necessary application relating to withdrawal of the caveats may be made under that liberty. ********** Last Modified: 10/15/2002 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.