New South Wales Supreme Court CITATION : Lowe v Lowe [2006] NSWSC 1193 HEARING DATE(S) : 12 October 2006 JUDGMENT DATE : 12 October 2006 JURISDICTION : Equity JUDGMENT OF : Hamilton J DECISION : Defendant 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; Ex parte Lai Qin (1997) 186 CLR 622 PARTIES : Alexander Lowe (P) Robert Lowe (D) FILE NUMBER(S) : SC 4560/06 COUNSEL : A M Gruzman (P) E A White (D) SOLICITORS : Boskovitz & Associates (P) John Byrnes & Associates (Legal) Pty Ltd (D) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J THURSDAY, 12 OCTOBER 2006 4560/06 ALEXANDER LOWE v ROBERT LOWE JUDGMENT 1 HIS HONOUR: These proceedings for the withdrawal of a caveat have, happily, been settled this morning by a withdrawal of caveat being handed over. However, the defendant resists the plaintiff's application for an order for the costs of the settled proceedings. 2 There has been tendered before me and I have had read the correspondence that passed between the solicitors before the commencement of the proceedings on 31 August 2006. I do not need to go into all the detail of that correspondence. It seems to me that what should have happened is acknowledged by the handing over this morning of the withdrawal of caveat, obviously upon what I regard as good and proper advice. 3 The basis on which the defendant was earlier resistant was misguided. It was misguided in two ways. First, it claimed that Mr Boskovitz, the plaintiff's solicitor, had stated or acknowledged that he was acting on the plaintiff's behalf on the basis of instructions given under a power of attorney. No such construction was available upon a proper reading of Mr Boskovitz' letter. 4 Secondly, and more importantly, it appeared to proceed on the basis that various potential claims of the defendant against his father, the plaintiff, to a proprietary interest in the property on some contractual or trust basis formed a proper reason why the withdrawal of caveat should be resisted. That this is not so was clearly stated by Mr Boskovitz in his letter of 19 September 2006 where he said that, whether or not the defendant had an interest in the property there was "no basis for resisting our client from becoming the registered proprietor of the property pursuant to the registrable Transfer in our client's possession". In fact, if the defendant had any interest along the lines claimed, it was an interest which would have to be asserted against his father, rather than the Housing Commission, which remained the registered proprietor of the property in the absence of registration of the transfer mentioned. 5 One must have some sympathy for the defendant who has lived for a long time in the property and now resides there with his wife and four children. However, because his failure to give a withdrawal, which was the course manifestly called for before rather than after commencement of the proceedings, the inevitable result is that the defendant must pay the plaintiff's costs of the proceedings, and I shall so order. His resistance caused the commencement by the plaintiff, quite reasonably, of the proceedings. Although the proceedings were settled their defence would have been quite hopeless: see Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622. 6 The orders of the Court will be, summons dismissed, order that the defendant pay the plaintiff's costs of the proceedings. The exhibits may be returned. ********** 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.