New South Wales Supreme Court CITATION : Equititrust Ltd v Geebung Polo Club Pty Ltd (In Liq) [2005] NSWSC 189 HEARING DATE(S) : 8 & 10 February 2005 JUDGMENT DATE : 10 February 2005 JURISDICTION : Equity JUDGMENT OF : Hamilton J DECISION : Defendant ordered to pay plaintiff's costs. CATCHWORDS : PROCEDURE [553] - Costs - Costs of whole action - Generally - Where action settled - Usual rule - Exception when it is plain one party would have succeeded had matter been fully tried. CASES CITED : Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin (1997) 186 CLR 622 Equititrust Limited (P) PARTIES : Geebung Polo Club Pty Ltd (In Liquidation) (D) FILE NUMBER(S) : SC 1395/05 E C Muston (P) COUNSEL : C Cruikshank, Solicitor (D) The Argyle Partnership (P) SOLICITORS : Deacons (D) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J THURSDAY, 10 FEBRUARY 2005 1395/05 EQUITITRUST LIMITED v GEEBUNG POLO CLUB PTY LIMITED (In Liquidation) JUDGMENT 1 HIS HONOUR: In this matter the plaintiff seeks, and the defendant opposes, that the plaintiff receive the costs of the proceedings. The proceedings were for the removal of a caveat. The plaintiff was the mortgagee exercising power of sale. It had in fact sold the subject property for $7,000,000. The defendant was a company in liquidation. It was the registered proprietor of the property. It claimed in the caveat an estate or interest as registered proprietor. It seems to have put the caveat on the title and to have bargained in various ways with the mortgagee in relation to whether or not the power of sale was being properly exercised and whether there would, after the sale, be any surplus of proceeds which would go to the company. On the very day when the plaintiff approached this Court for leave to serve short notice of the summons, the defendant did proffer what was said to be an unconditional undertaking that it would attend at settlement of the sale (scheduled for some six days hence) and proffer a notice of withdrawal of caveat. However, some shadow was thrown on the unequivocal nature of this undertaking by a request appended to it that the defendant be furnished with certain documents. Alternatively, it offered to withdraw the caveat if certain documents were forwarded to it. 2 The strongest argument against a costs order is Mr Cruikshank's argument that the unconditional undertaking to attend at settlement and proffer a withdrawal of caveat should be taken to be unequivocal and unconditional and that the plaintiff should have relied on this undertaking rather than bringing these proceedings. 3 The principles on which applications are determined for the costs of proceedings which have been settled, or in which relief has been consented to, were discussed by McHugh J in Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin (1997) 186 CLR 622. His Honour points out that the court will not, in effect, try settled proceedings for the purpose of determining costs. However, costs may be ordered against a party where the party's conduct was unreasonable or it was plain that the successful party must succeed. 4 There would be something to be said for Mr Cruikshank's argument where an undertaking was proffered on behalf of a company acting through a liquidator, who is an officer of the court. However, this was a $7,000,000 settlement a few days off. It is true that time was not of the essence, but it was obviously of importance that that settlement be carried through and that the plaintiff be under no doubt that it would be able to complete the transaction at the time fixed for it. There was really no justification for the caveat and, despite what I have said, in all the circumstances it is my view that it was unreasonable for the defendant not to withdraw it before the settlement and without condition. Equally it was plain that the plaintiff must succeed in the proceedings it proposed to bring, if they were brought. 5 In the circumstances I order that the defendant pay the plaintiff's costs of the proceedings. ********** 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.