Coscom Pty Ltd v Standing Enterprises Pty Ltd [2006] NSWSC 114

New South Wales Supreme Court

CITATION : Coscom Pty Ltd v Standing Enterprises Pty Ltd [2006] NSWSC 114

HEARING DATE(S) : 15, 17 and 22 February 2006

JUDGMENT DATE : 22 February 2006

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Costs of settled proceedings for extension of caveat reserved.

CATCHWORDS : PROCEDURE [602] – Supreme Court Procedure – Practice under Uniform Civil Procedure Rules - Costs – Interlocutory proceedings – Costs in the cause – Interlocutory proceedings settled.

LEGISLATION CITED : Real Property Act 1900 s 74K(2)

CASES CITED : Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622

Coscom Pty Limited (P) PARTIES : Standing Enterprises Pty Limited (D1) Charles Arthur Copeland (D2) Debra Elizabeth Copeland (D3)

FILE NUMBER(S) : SC 1454/06

COUNSEL : R I Bellamy (P) R J Brender (Ds)

SOLICITORS : Morgan Lewis Atorneys (P) Sean Wilkins & Company (Ds)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

WEDNESDAY, 22 FEBRUARY 2006

1454/06 COSCOM PTY LIMITED v STANDING ENTERPRISES PTY LIMITED & ORS JUDGMENT 1 HIS HONOUR: At the moment these are proceedings in which the only relief sought is in relation to the extension of a caveat. The substantive proceedings, which will ultimately determine the rights between the parties, have not been commenced. The plaintiff did not originally seek final relief in its summons, nor has it applied to amend its summons to include it, because, bearing in mind the amount involved, its intention was to take that issue up in the Local Court, since the subject matter is within its jurisdiction. 2 However, Mr Brender, of counsel for the defendants, has now announced that he will seek leave to file a cross summons or statement of cross claim in these proceedings to determine the substantive questions, since his clients propose to seek relief which it is not within the jurisdiction of the Local Court to grant. It therefore appears, despite the comparatively small amount involved, that the determination of the substantive questions will proceed in this Court. 3 The argument before me has been as to the costs of the proceedings to date, being the settled proceedings in relation to what was to occur about the caveat. Some interesting questions have arisen in the arguments that have been put before me, including whether or not the proceedings for extension of caveat are in their nature final or interlocutory and, whether or not that be strictly so, whether the costs ought to be dealt with on the basis that such proceedings ought to be regarded as of an interlocutory sort. The principles as to costs in interlocutory applications are, of course, different from the principles on final hearing. In interlocutory applications for an injunction or extension of a caveat a successful plaintiff will usually obtain, not a straight out order for its costs, but an order that the costs of the application be its costs in the proceedings. This will mean that the plaintiff will recover the costs of the interlocutory application if it is successful in the proceedings. If it is not, it will not recover the costs of the interlocutory proceedings, but the defendant will not be entitled to recover under an order for costs in its favour the costs of the interlocutory application. 4 The additional complication that has crept about in this case is the fact that the caveat aspect was settled without any determination by the Court. This raises a question of the incidence in such circumstances of the principle as to costs in settled cases enunciated by McHugh J in Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622. I certainly intend to proceed on the principle laid down in that case that, in general terms, a court will not try a settled case in order to determine the incidence of costs. This would be extremely wasteful of the time of courts. 5 In this case I have not even become aware of the precise terms of the claim made in the caveat itself, although I am necessarily aware of the general terms of the plaintiff's substantive claim. Equally, I have given no consideration to the question of whether or not the plaintiff was able to make out what it needed to make out to obtain relief under s 74K(2) of the Real Property Act 1900, namely, that the Court should be satisfied that the caveator's claim has or may have substance. 6 There are some quite fascinating questions that arise out of those various considerations. However, I am of the view that, particularly bearing in mind it is now plain that these proceedings are to continue (although I do not really think my decision would have been different had it continued to appear that the substantive dispute would be determined in the Local Court), the preferable course in this case is that the determination of the costs of the first part of the proceedings should await the determination of the substantive questions between the parties. In the circumstances, the order that I make in relation to the costs in these proceedings to date is that those costs be reserved.