Albarran v Theodorou [2006] NSWSC 9

New South Wales Supreme Court

CITATION : Albarran v Theodorou [2006] NSWSC 9

HEARING DATE(S) : 17 January 2006

JUDGMENT DATE : 17 January 2006

JURISDICTION : Equity

JUDGMENT OF : Campbell J

EX TEMPORE JUDGMENT DATE : 01/17/2006

DECISION : Indemnity costs order made.

CATCHWORDS : PRACTICE – costs – defendants compel plaintiff to commence proceedings when defendants have no basis upon which proceedings could be opposed – indemnity costs order appropriate

Richard Albarran - First Plaintiff PARTIES : Blair Pleash - Second Plaintiff George Theodorou - First Defendant Willard Day - Second Defendant

FILE NUMBER(S) : SC 1087/06

COUNSEL : R K Eassie - Plaintiffs No Appearance - Defendants

SOLICITORS : ERA Spinks Legal - Plaintiffs No Appearance - Defendants

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

CAMPBELL J

TUESDAY 17 JANUARY 2006

1087/06 RICHARD ALBARRAN & ANOR v GEORGE THEODOROU & ANOR JUDGMENT – Ex Tempore 1 HIS HONOUR: These proceedings were begun on 13 January 2006. They seek to remove a lapsing notice concerning a caveat. 2 On 20 July 2005 the second defendant executed a deed of indemnity and guarantee in favour of the plaintiffs to secure certain fees which may become payable to them in connection with acting as administrators of a certain company. The guarantee contained a charge by the guarantor of all his real property, to secure the monies which would, or would thereafter, become owing or payable to the plaintiffs. 3 The plaintiffs lodged a caveat on 18 August 2005 to protect their rights under that charge. 4 On 23 December 2005 a letter enclosing a lapsing notice was, it seems, put in the post addressed to the plaintiffs. So far as the evidence takes it, it appears as though that lapsing notice was not received until the week before 11 January 2006. On 11 January 2006 the plaintiffs' solicitors wrote a letter before action requesting that the lapsing notice be removed. It was not. Proceedings were commenced shortly thereafter. 5 Today, the lapsing notice has been withdrawn. 6 It is quite clear that the plaintiffs had a caveatable interest. There was no basis for seeking its lapsing. That there was no basis has been amply demonstrated by the conduct of the second defendant, in withdrawing the lapsing notice today. 7 The defendants have not appeared in the proceedings, but I am satisfied that the service of process has occurred. 8 Requiring proceedings to begin, when there is no basis upon which those proceedings could be opposed, is one circumstance in which an indemnity costs order can be granted. I am satisfied that this is an appropriate case for making such an order. 9 I make the declaration in para 1 of the short minutes of order which I initial, date today's date and place with the papers. I note the matter in para 2 and make the order in para 3. **********