Araf Capital Funding Pty Ltd v Megaloudis [2006] NSWSC 1255

New South Wales Supreme Court

CITATION : Araf Capital Funding Pty Ltd v Megaloudis [2006] NSWSC 1255

HEARING DATE(S) : 20 November 2006

JUDGMENT DATE : 20 November 2006

JURISDICTION : Equity

JUDGMENT OF : Campbell J

EX TEMPORE JUDGMENT DATE : 11/20/2006

DECISION : Costs reserved

CATCHWORDS : PROCEDURE – costs – notice of motion resolved on first return date – orders claimed in notice of motion not appropriate for plaintiff's real objective – no evidence of attempt to resolve real issue before notice of motion taken out – importance of solicitors seeking to attain objective by agreement before taking out notice of motion

PARTIES : Araf Capital Funding Pty Limited - Plaintiff Agapitos Peter Megaloudis - Defendant

FILE NUMBER(S) : SC 5268/04

COUNSEL : C Stomo - Plaintiff C Wood - Defendant

SOLICITORS : Garland Hawthorn Brahe - Plaintiff David Cohen & Co - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

MONDAY 20 NOVEMBER 2006

5268/04 ARAF CAPITAL FUNDING PTY LIMITED v AGAPITOS MEGALOUDIS JUDGMENT – Ex Tempore 1 HIS HONOUR: The matter that has come before me today is a Notice of Motion that was filed in proceedings that sought an extension of a caveat. The plaintiff in the proceedings seeking extension of a caveat was a commission agent, who had sued the defendant in the District Court seeking commission. The plaintiff put a caveat on the title of some land of the defendant, claiming it had security over that land for the amount of its commission. The defendant filed a lapsing notice. The plaintiff thereupon began the present proceedings seeking an extension of the caveat. That extension was granted. 2 The proceedings between the plaintiff and the defendant in the District Court were heard, and determined on 24 May 2006, with the plaintiff failing in its claim for commission. 3 Thereafter, the defendant filed a motion, seeking to enforce an undertaking as to damages that had been given at the time the caveat was extended. 4 The plaintiff has appealed to the Court of Appeal against the decision in the District Court. That appeal has not yet been heard. 5 The present Notice of Motion is one that the plaintiff filed on 20 October 2006. It sought the following orders: "(1) An order that execution on and all proceedings under the judgment herein of Her Honour Judge Quirk of 24 May 2006 in proceeding No. 3306 of 2004 in the District Court of New South Wales be stayed pending hearing of the appeal herein and judgment of the Court of Appeal thereon or until further order. (2) An order that order (1) shall apply to stay execution on and all proceedings to obtain payment of any judgment or order for costs that may be made in the proceedings." 6 What the plaintiff in substance really sought, so far as the present proceedings are concerned, was to place the proceedings to enforce the undertaking as to damages on hold until such time as the Court of Appeal had decided the appeal from the District Court judgment. The parties have, today, agreed that such an undertaking will be given. 7 The orders that were sought in that Notice of Motion are quite inappropriate for seeking what was apparently really desired. The orders that were sought are ones that would be appropriate to be sought in the Court of Appeal, not from a judge at first instance, and relate to enforcement of the District Court judgment, not to prosecution of first-instance proceedings to enforce an undertaking as to damages. 8 Nonetheless, the reality is that, on the first return date of the Notice of Motion, the defendant has proffered an undertaking, which gives the plaintiff what it really wants. 9 The defendant seeks an order that the plaintiff pay the defendant's costs of the motion. 10 No evidence is put before me concerning any letter before action, or any attempt to discuss what the real desire of the plaintiff was, before the matter was brought to Court. That is a factor that needs to be taken into account before any ultimate decision as to costs is made, because, except in cases of pressing urgency to obtain a court order, solicitors that are running litigation in a responsible way ought to seek what they really want from the other side, and try to obtain it by agreement, before taking out a Notice of Motion. In the circumstances where we have a topic that is important to the exercise of a discretion as to costs that has not been explored, the only order that I shall make is to reserve the costs of the Notice of Motion. 11 I note the undertaking contained in paragraph 1 of a document entitled Terms that I initial and date today's date. I make orders in accordance with paragraphs 3 and 4 of that document. **********