Supreme Court New South Wales Medium Neutral Citation: Metcalf v Zhang (No. 2) [2019] NSWSC 1796 Hearing dates: 20 March, 21 May & 4 July 2019 Date of orders: 19 December 2019 Decision date: 19 December 2019 Jurisdiction: Equity Before: Slattery J Decision: Form of final relief settled. Amount to be distributed to the plaintiff in the Alexandria proceedings calculated. A single order for costs made against the defendant in both proceedings. Catchwords: COSTS AND CONSEQUENTIAL ORDERS – the plaintiff and the defendant, formerly a couple in a domestic relationship, were in dispute as to their respective ownership interests in two properties: an investment property and a residential property – in the Court's principal judgment, the Court declared that the investment property held by the couple was held by them beneficially in equal shares but that an account should be taken of the benefits flowing from the defendant's advance of $60,000 into a mortgage offset account used to pay off the mortgage for the investment property – in the principal judgment, the Court also declared that the defendant held a 78% interest in the residential property they occupied – the Court directed that the parties bring in agreed short minutes of order – the remaining issues are now what final orders should now be made – how should the amount due to the plaintiff be quantified – what order for costs should be made in the proceedings. Legislation Cited: Conveyancing Act 1919, s 66G Uniform Civil Procedure Rules 2005, r 42.1 Cases Cited: Metcalf v Zhang [2018] NSWSC 1998 Nobarani v Mariconte (2018) 359 ALR 31 Oshlack v Richmond River Council (1998) 193 CLR 72 Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) Category: Consequential orders (other than Costs) Parties: Lex Metcalf (plaintiff/cross defendant) Lijuan Linda Zhang (defendant/cross claimant) Representation: Counsel: G W McGrath SC (plaintiff/cross defendant) L Zhang in person (defendant/cross claimant) Solicitors: Pryor Tzannes & Wallis Solicitors (plaintiff/cross defendant) File Number(s): 2016/371835; 2017/200262 Publication restriction: No Judgment 1. This is the Court's second judgment in these proceedings. In the Court's first judgment, the Court made declarations about the relative interests of each of the plaintiff and the defendant in two properties known respectively as the Alexandria property (an investment property) and the Waterloo property (a domestic residential property in which the parties lived): Metcalf v Zhang [2018] NSWSC 1998. This judgment deals with consequential issues arising out of the first judgment, including costs. 2. This judgment does not repeat the findings in the Court's first judgment and should be read together with the Court's first judgment. Events, matters and persons are referred to both judgments in the same way. 3. Mr McGrath SC continued to appear for the plaintiff in the hearing about consequential issues. The defendant continued to appear for herself without legal representation. 4. In the conclusion of the Court's first judgment, the Court declared that the Alexandria property was held in equal shares between the plaintiff, Mr Metcalf, and the defendant, Ms Zhang, but that a proper account should be taken of the benefits flowing from Ms Zhang's advance of $60,000 into a mortgage offset account that had been used to pay off the first mortgage for that property. 5. In relation to the Waterloo property, in the first judgment the Court declared that Ms Zhang held a 78% interest in that property, which the Court said should be vested in trustees for sale. The Court ordered the parties to bring in short minutes of order to give effect to the reasons in the first judgment and to deal with issues of costs. 6. The matter came back to Court on 20 March 2019. The parties could not agree upon short minutes of order, or upon the accounting to take place between them, or costs. So the Court made directions for the parties to put on submissions to deal with these various matters. They did so by an exchange of submissions in May 2019. The matter was mentioned again in July 2019, when the Court reserved judgment. 7. The issues remaining for determination are: 1. what final relief should now be given in the proceedings, including in relation to the appointment of trustees for sale of the Waterloo property; 2. how should the Court quantify and implement the final orders to be made in the Alexandria property proceedings; and 3. what order for costs should now be made in light of the outcome of the first and second judgments. 1. In order for these three matters to be determined, some further background is required to explain the different positions taken by each of the parties and the submissions that they have advanced on each of the issues. 2. Mr Metcalf is the plaintiff, and Ms Zhang is the defendant, in each of these two proceedings that were heard together. In the Alexandria property proceedings, Mr Metcalf sought a declaration that he was entitled to a one half share of the sale proceeds of the Alexandria property. And in the Waterloo property proceedings, Mr Metcalf sought the appointment under Conveyancing Act 1919, s 66G trustees for sale of that Waterloo property. 3. Ms Zhang's lack of legal representation does not entitle her to special and more favourable treatment from the Court. Samuels JA explained this in the following passage from Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep), (at [47]), which was cited with approval by the High Court of Australia in Nobarani v Mariconte (2018) 359 ALR 31; [2018] HCA 36, (at [27]): "the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent." 1. The Court endeavoured to give Ms Zhang a basic understanding of the Court procedure in which she was involved, to assist her in the exercise of her procedural rights. (1) What Final Relief Should Now be Given? 1. In the Waterloo property proceedings, there is no basis to withhold the making of Conveyancing Act, s 66G orders. The property is jointly owned. The parties cannot agree on a sale. There are persons willing to act as trustees for sale. The Court will make declarations about the relative ownership of the Waterloo property. The trustees will be able to distribute the proceeds of sale in accordance with the parties' declared shares. 2. But there are practical problems in an appointment of trustees for sale becoming operative immediately. Mr Metcalf and Ms Zhang still live in the Waterloo property. Arrangements will have to be made for them to move out. Their son is living there as well. The parties have been on notice for some time that such orders were likely to be made. But the final timetabling of the orders is important for their convenience. It is now shortly before the Court vacation. Moreover, the property cannot be marketed until late January 2020. 3. Little evidence exists that there is any potential for future co-operation between these parties. But they should still be afforded a final opportunity to see whether one can buy out the other, in light of the appointment of the trustees for sale. It is highly desirable for these parties to save themselves the costs of trustees for sale commencing to act. They may yet be able to settle up their differences by a money exchange, without the need for a sale to a third party. 4. Accordingly, the Court will stay the appointment of the trustees for sale, until early in the new law term; that is, until Friday, 14 February 2020. But if there is no final agreement in the offing then, the stay will expire and the trustees will commence to act. 5. Ms Zhang also submits that she should be compensated for the fact that the "price of the Waterloo property is uncertain", that "the property prices in Sydney have been declining" and "the sale of the property under Court order will result in more cost". 6. This submission provides no basis to compensate Ms Zhang. As a declared co-owner of the property she is entitled to the net proceeds of sale of the property from time to time, when it is sold under the Court's Conveyancing Act, s 66G orders, whatever those proceeds might be at the time of sale. The Court has declared that she has a larger interest in the property than Mr Metcalf. She is therefore more affected by the gross level of fluctuation in the market price of the Waterloo property. But both he and she are each affected by fluctuations in property prices in proportion to their respective shares of the property. 7. In the Alexandria property proceedings, several disputes exist about the form of final relief to be given. These are detailed below. 8. First, Ms Zhang submits now that the Court has decided that the proceeds of sale of the Alexandria property should be divided 50-50 according to the agreed division in the Deed, that "the parties' intentions are the decisive factor in dividing the share of the property" and that "the full intentions of each party must be taken into account". She submits that her full deposit for the Alexandria property of $73,000 should be returned to her before the net profit from the sale of that property is divided 50-50. She says the way to achieve that is for the $73,000 to be deducted now from Mr Metcalf's half share of the proceeds of the Alexandria property. 9. Her submission is based upon the Court's findings in the principal judgment (at [45]) that there was "a cash advance of about $70,000 by Ms Zhang" at the time of acquisition of the Alexandria property. Ms Zhang has annexed to her submissions, a letter signed by Mr Metcalf dated 12 December 1995, which provides that "when the [Alexandria] property is sold, the full deposit of $73,000 is to be returned to Ms Lijuan Zhang before any profits from the sale is to be equally divided (50%) and also paid to Ms Zhang". 10. But the Court has found that the parties' intentions are reflected in their Deed, which expressly acknowledges Ms Zhang's agreement to contribute the $70,000 but which nevertheless also recites that "the parties have agreed to purchase the [Alexandria] property as tenants in common in equal shares". The formally executed Deed created between the parties, with the assistance of lawyers, does not refer to the up front deduction of the $73,000 as a modification of the agreed ownership entitlement of 50-50. As the Court found in the first judgment (at [118] and [119]), the Deed records their agreement, which grounds the Court's declaration that the proceeds should now be distributed 50-50. It is too late for Ms Zhang to dispute that conclusion and advance other alleged contradictory evidence. 11. Secondly, Ms Zhang submits she should be indemnified pursuant to clause 2 of the Deed against certain losses that she alleges she has suffered. She submits that according to the Deed she was only required to pay a 34% share of the loan in respect of the Alexandria property but that her contribution to loan repayments was in fact equivalent to 50%, which is 16% more than the share of her loan obligations. She says that clause 2 of the Deed should now be applied to indemnify her against that over contribution. 12. This contention is not persuasive. This is the first time she has argued a claim in the proceedings based on clause 2 of the Deed. And the Deed, clause 2 (set out in the first judgment at [51]) requires Mr Metcalf to indemnify Ms Zhang in respect of loss or damage suffered by her "arising out of or in respect of any default by him in paying such interest or instalments". The scope of the indemnity in clause 2 is limited to his defaults in paying instalments to the mortgagee of the Alexandria property. The indemnification Ms Zhang seeks to rely upon here is not based on any default to a mortgagee. The indemnity is therefore not engaged for the purposes for which Ms Zhang contends. 13. Thirdly, Ms Zhang submits that a sum of $16,825.56 should be returned to her, by being deducted from Mr Metcalf's share of the Court ordered distribution. She claims an entitlement to the return of this sum, on the basis that it represents an amount of approximately $200 a week that she says she paid Mr Metcalf "for his personal expenses" for about two years between 2008 and 2010. She submits this was paid to Mr Metcalf, in addition to the cash payments that she made by way of contribution to the acquisition of the Alexandria property and the Waterloo property. 14. This claim revisits a contention Ms Zhang advanced during the hearing and which the Court dealt with in the first judgment, (at [40] and [41]). Mr Metcalf disputed at the hearing that Ms Zhang had made these payments. In the first judgment, the Court did not accept her evidence that she had. Even if it were open to revisit the Court's conclusions in the first judgment, there is no basis to do so in respect of this claim, as there is no factual basis established for it. (2) Final Orders in the Alexandria Property Proceedings 1. Several unresolved matters about the form of final orders in both proceedings exist. These various matters relate to: the quantum of the distribution of the Alexandria property proceeds to Mr Metcalf; the accounting for Ms Zhang's advance of $60,000 into the mortgage offset account; the calculation of interest; and, the form of machinery orders. 2. The final calculation of the quantum of the distribution of the Alexandria property proceeds to Mr Metcalf can be done. The starting point of the calculation is the Court's conclusion in the first judgment, (at [72]), that the net proceeds of sale should be divided between Mr Metcalf and Ms Zhang to give each party a one half share in the proceeds of $771,115. From this figure the final amount payable to Mr Metcalf is further adjusted as follows. 3. After becoming aware of Ms Zhang's dealings with the proceeds of sale, on 6 December 2016, Mr Metcalf transferred to himself $123,300 from the remaining credit balance of the offset account. The bank statements for the offset account disclose that an account credit balance of $50,680.76 existed as at 9 September 2016, prior to the deposit of the gross sale proceeds of the Alexandria property into the account. Mr Metcalf was already entitled to a one-half share of those pre-existing funds (namely $25,190.38). Mr Metcalf's 6 December 2016 $123,000 withdrawal therefore included his own share of those pre-existing funds. Therefore the part of his $123,000 withdrawal that notionally related to his one-half share of the net proceeds of sale of the Alexandria property was the sum of $97,809.62 (being $123,000 less the $25,190.38 already in the account to which he had a pre-existing entitlement). 4. This sum of $97,809.62, received by Mr Metcalf reduces the outstanding balance due to him for his one-half share of Alexandria property sale proceeds to $673,305.38 (being $771,115.00 less $97,809.62). 5. The Court made interlocutory orders on 15 December 2016, requiring Ms Zhang to pay to Mr Metcalf's solicitors the sum of $225,406.00. That payment was made and must also be credited against his entitlement to the sale proceeds. Thus the outstanding balance of his one-half share of the net factory sale proceeds is further adjusted to $447,899.38 (being $673,305.38 less $225,406.00). 6. There is a further deduction. The Court concluded in the first judgment (at [119]) that Ms Zhang should be given credit for the financial effect of the $60,000 which she advanced into the joint offset account. The Court said she should be given any interest or capital effect of that advance. This was a transaction which was not contemplated by the Deed and should therefore be separately taken into account. That is the placement of this money in the offset account, rather than Ms Zhang holding it back and paying her share of the mortgage instalments, as and when they fall due, conferred a net interest benefit on the borrowers, Ms Zhang and Mr Metcalf, by reducing their mortgage interest liability. But Ms Zhang and Mr Metcalf shared this interest benefit 50-50, in the same proportion they were liable to the mortgagee. So the net benefit to Mr Metcalf was only half the gross interest benefit. 7. Ms Zhang submits, and Mr Metcalf accepts, that the gross interest effect of this advance was $9,548.24. So half the gross interest benefit is flowing from her advance of that amount of money to the mortgage offset account is $4,774.12 (being $9,548.24 ÷ 2). This amount will also be deducted from Mr Metcalf's half share of the sale proceeds. So his ultimate net share is $443,125.26 (being $447,899.38 less $4,774.12). 8. There was no capital benefit to Mr Metcalf from the advance of the $60,000 into the mortgage offset account. As the Court found in the first judgment (at [83]) the $60,000 was not paid out of the mortgage offset account into the home loan account. 9. Mr Metcalf claims interest up to judgment. He contends that the funds representing the bulk of the net sale proceeds of the Alexandria factory have since completion of the sale of the factory been kept by Ms Zhang to date in an interest-bearing bank account in her name, under the authority of the Court's freezing orders. 10. The interest claim is made at the rate of 2% per annum only, rather than the rate in the general practice direction. And it is made from 19 September 2016 to date. The interest commencement date of 19 September 2016 is the date found by the Court in the first judgment on which Ms Zhang removed the monies from joint NAB account 1856 without Mr Metcalf's authority into her possession, leading him in turn to commence the Alexandria property proceedings to secure the money. In my view, this is the correct approach for the calculation of interest. The only question is whether 2% is the correct interest rate. If interest is not paid Ms Zhang will obtain a windfall. 11. This judgment is being given on 19 December 2019. So interest should be calculated from 19 September 2016 to 19 December 2019 (a period of 1186 days, or about 3 and one quarter years). 12. Ms Zhang disputes she is liable to pay any interest on the money she has held for three years. Her submission in response criticises the whole interest claim. She submits: she put food on the table for their son during this period; she paid bills for the home in which he lived; she paid family health insurance that included Mr Metcalf; and, she paid for their son's student exchange to the United States. 13. Ms Zhang's submissions may identify events that indeed have occurred. But this is not a matter in the Family Court of Australia. A broad sharing of personal expenditure, apart from investment in the Waterloo and Alexandria properties is not directly taken into account in these proceedings. But another undoubted fact is that, since 19 September 2016, Ms Zhang has derived the financial benefits for over three years of having the proceeds of sale of the Alexandria property in a bank account in her name, proceeds to which she was not fully entitled. She should account for her unauthorised retention of those funds, rather than be given the windfall from what was, on her part, a transfer of shared funds without Mr Metcalf's consent. 14. The 2% interest claimed is potentially high. Interest rates on bank deposits have fallen below that in recent times. The Court will adjust for that a little by only allowing interest at 2% for three years, rather than the three years and three months to which Mr Metcalf might otherwise be entitled. Shortening the period of interest is the equivalent of partially lowering the interest rate. The final interest calculation will therefore be calculated on the basis of three years simple interest at 2% per annum. The Court is mindful in doing this and no more is that Mr Metcalf could potentially have argues for a higher rate of interest up to judgment under Civil Procured Act 2005, s 100. Interest at 2% for one year on $443,125.26 is $8,862.51 and for three years is $26,587.52. 15. Some machinery orders need to be made. Such orders will ensure that the freezing orders remain in place until monies are distributed in accordance with the Court's order and that those monies are distributed to Mr Metcalf. Ms Zhang will be required to sign the necessary documents to procure the payment to Mr Metcalf contemplated by the Court's orders within 28 days. The proceedings will be stood over to the first week of term, when the freezing orders can be vacated, subject to the Court being informed that payment has been made to Mr Metcalf in accordance with the Court's orders. (3) What Costs Orders Should Now Be Made? 1. The parties advance three different contentions about what costs order should now be made in both the Alexandria property and the Waterloo property proceedings. Their respective positions may be briefly summarised. 2. In the Alexandria property proceedings Mr Metcalf submits that he has been substantially, if not wholly, successful in obtaining the declaratory relief and the money sum claimed in his Amended Statement of Claim. He submits that the difference between the monetary sums that he claimed and the amount that he has been awarded is minimal. He contends in those circumstances that the appropriate outcome of the Alexandria property proceedings is that the Court should make an order for costs following the event in his favour, in accordance with Uniform Civil Procedure Rules 2005 ("UCPR"), r 42.1 and that there is no basis to order otherwise. He cites support for this in the general principles stated by the High Court in in Oshlack v Richmond River Council (1998) 193 CLR 72; (1998) 152 ALR 83; [1998] HCA 11, (at [67]). 3. Mr Metcalf concedes there is a small monetary award to Ms Zhang on her cross-claim in the Alexandria property proceedings but that this award is insignificant and does not affect the overall effect of the relief the plaintiff has obtained. Mr Metcalf submits that the fact that Ms Zhang is unrepresented does not make any difference to her potential liability for costs; nor is it a basis to deprive Mr Metcalf of an award of costs in accordance with the application of ordinary discretionary principles in relation to costs. 4. In the Waterloo property proceedings, Mr Metcalf submits that Ms Zhang should pay his costs. He submits that he has been successful in obtaining orders for the appointment of trustees for sale. He accepts that Ms Zhang has succeeded in parts of what he describes as her "late cross-claim" to adjust the beneficial entitlements of the parties in the Waterloo property. Mr Metcalf's principal contention is that no resolution would have been reached between this couple, if he had not pursued the litigation that he has in relation to this property. In the alternative, Mr Metcalf contends the Court should order Ms Zhang to pay a proportion of his costs of the Waterloo property proceedings. 5. A discretionary consideration that Mr Metcalf also asks to be weighed in the balance is that Ms Zhang has "consistently declined or refused to communicate with his legal representatives (even in the face of the Court), declined or refused to agree to procedural directions or orders requiring the Court to hold hearings to determine what procedural directions should be given, and despite her assertion to the contrary, [she] did not attempt and negotiate a resolution of the proceedings". 6. Ms Zhang puts competing submissions as to costs with respect to both sets of proceedings. Ms Zhang strongly opposes any order for the payment of costs against her in either set of proceedings. She submits that this case is really a family financial dispute and that the general rule in family law cases is that each party will bear their own legal costs, whatever the outcome of the case. She expands this argument, submitting that legal costs would have been much lower if this case had been brought and concluded in the Family Court of Australia, where she submits that she actually preferred to have the matter adjudicated. She says that when this litigation was commenced she questioned the decision made by Mr Metcalf to bring the proceedings in this Court. 7. Somewhat at odds with her previous submission she also says that the first time that she heard of the issue of whether the matter could possibly have gone to the Family Court for decision was when it was raised by this Court at the hearing. She says that she was never told by her previous solicitor of the possibility of having the proceedings heard in the Family Court. 8. Moreover, Ms Zhang submits that when the proceedings were commenced she tried to negotiate a resolution of the dispute. She complains that it is extremely difficult for her, being a self-represented party, in this litigation to present her case. But she says that she has taken this course to conserve money for the family and she has (as she says) endured the "contempt and threat" that go with representing herself. She concludes in her submissions that "[I] did my best to go on with these proceedings". 9. She says that since the beginning of this case that Mr Metcalf has refused to talk to her to settle the dispute. She says that he has chosen to use a legal team and has benefitted significantly from it. But she says that is his own choice and he should pay his own costs as a result. 10. It is also clear from Ms Zhang's submissions in reply that she is deeply offended by the suggestion that she should have to pay any of Mr Metcalf's costs of the Waterloo property proceedings, describing that proposal in the following terms: "this is somehow an even more absurdly atrocious proposition that I will ignore". 11. The exercise of the Court's costs discretion in this case is difficult. But the following particular considerations are raised by the parties' submissions. 12. The Court's costs discretion cannot be governed by what might have happened in the Family Court of Australia. How the Family Court might have exercised its cost jurisdiction is not relevant. This case is not being decided in the Family Court. No party sought to refer these proceedings to the Family Court. Although Ms Zhang says that she questioned Mr Metcalf's decision to commence these proceedings in this Court, she did not take any active steps to have them transferred to the Family Court. This Court can only properly have regard to the discretionary principles in relation to costs, and the applicable rules of court under UCPR, r 42.1 that apply to proceedings in this Court. The Court is not persuaded by the contention that the starting point for determining costs is what might have happened in the Family Court. 13. The exercise of the costs discretion for the Waterloo property proceedings should be analysed separately from the costs discretion in the Alexandria property proceedings. Mr McGrath SC makes the persuasive point that absent a referral to the Family Court one or other of these parties had to commence Conveyancing Act, s 66G proceedings. Otherwise this dispute would never have been resolved under Court authority. And it was never going to be resolved without Court intervention. Short of Ms Zhang commencing proceedings in the Family Court, which did not occur, commencing the Waterloo proceedings, seeking the relief that Mr Metcalf did, was indeed the only logical way of bringing this matter to a head. The provisions of Conveyancing Act, s 66G exists for that very purpose: to ensure that joint owners of property can go their separate ways if they need to. 14. There is a real need to bring Conveyancing Act, s 66G proceedings here. Ms Zhang and Mr Metcalf are still living in the same property but are not speaking to one another. They do not acknowledge one another in the Court room. This very difficult personal situation always had to be brought to a final and authoritative end. One or other party had to incur the cost of commencing s 66G proceedings. 15. Mr Metcalf should not have to bear the full costs of the 66G proceedings. The filing and pursuit of those proceedings ultimately is for the benefit of both parties. Mr Metcalf should be compensated for taking that step. In my view, both Mr Metcalf and Ms Zhang equally benefit from the commencement of those proceedings and it is appropriate for the costs of those proceedings to be born on a shared basis. 16. But how should the costs be apportioned? The Court has found on her cross-claim that Ms Zhang holds a 78 per cent interest in the Waterloo property. Mr Metcalf is declared only to hold a 22 per cent interest in the property. Ms Zhang has been successful in that contest. The Court has decided not to apportion the cost of the proceedings in the same proportions as the property. By bringing the proceedings Mr Metcalf gets some benefit from being able to release his capital. 17. But the costs of Ms Zhang's cross claim in the Waterloo property proceedings overlap to a degree with the costs incurred in resolving the Alexandria property proceedings. 18. In the Alexandria property proceedings, Mr Metcalf has been substantially successful in obtaining the relief and the money sum which he claimed in his Amended Statement of Claim. Were the Alexandria property proceedings to be determined on their own, he may well be entitled to an order for costs. He had to commence those proceedings to restrain Ms Zhang from dealing with the moneys belonging to Mr Metcalf that she transferred out of their joint account 1856. The result of the Alexandria property proceedings shows that he was well justified in commencing those proceedings to protect his interests in that fund and he has been largely successful in them. 19. But the Alexandria property proceedings were not heard on their own; they were heard with the Waterloo property proceedings. But there was a strong dispute in the Waterloo property proceedings about the relative interests of Mr Metcalf and Ms Zhang. Ms Zhang's contentions about her 78% interest prevailed in that contest. Merely acceding to Mr Metcalf's submission on the Alexandria property proceedings would not do justice to these complexities. 20. Ms Zhang's conduct of the proceedings has been less than ideal. Her general unwillingness to deal with the lawyers on the other side has protracted the proceedings and at times has occasioned expense to the plaintiff. This has been an unfortunate feature of the proceedings and created inconvenience for the Court and the parties. The Court had to warn Ms Zhang about refusing to communicate with Mr Metcalf's lawyers. The Court warned her in a directions hearing in March this year that if she continued to correspond with Mr Metcalf when he had lawyers in the proceedings that may result in cost orders being made against her in respect of any waste or unnecessary costs. 21. But attributing blame for this breakdown in communications is quite difficult. Relations between Mr Metcalf and Ms Zhang are deep frozen. She complains that he has been insufficiently responsive to overtures to finalise the proceedings on a reasonable basis. A matter which the Court cannot determine. All the Court can say from what it has seen directly is that there have been a number of occasions where Ms Zhang has not communicated with Mr Metcalf's lawyers, which has caused a degree of inconvenience at least. It is difficult to assess just what extra costs were incurred by this but they cannot be discounted as minimal. 22. In a related submission, Ms Zhang says that Mr Metcalf and his legal representatives have never attempted to negotiate a resolution with her but have attempted to obtain orders from the Court that she agree with. This submission appears to be a misconstruction of the occasions during the proceedings where the Court directed short minutes of order to be prepared and where the plaintiff's legal representatives complied with those orders in a way which indeed has assisted the Court. These orders were provided as a convenience to the Court to formulate with precision the nature of the final relief sought and this is not uncommon in litigation. What the plaintiff's did was merely to comply with the Court's directions. The parties can otherwise gain no more favourable a costs outcome in the proceedings by accusing the other party of failing to negotiate. This submission is not persuasive. 23. Yet another consideration is bringing to an end the dispute between these parties. The Court should try when making a cost order to avoid a complex cost assessment, if that is possible. For the Court to make one costs order in the Waterloo property proceedings, and another costs order in the Alexandria property proceedings, invites argument about which of potentially overlapping costs were incurred in which of the proceedings. 24. So the Court will make a single costs order in both proceedings, doing the best it can in the circumstances with these various competing factors. Taking the approach set out here the Court has decided that it will order Ms Zhang to pay 30 per cent of Mr Metcalf's costs of these proceedings. Conclusions and Orders 1. For these reasons the Court makes the following orders and directions in each of the Alexandria property proceedings and the Waterloo property proceedings: 2. In proceedings 2016/371835 Metcalf v Zhang, the Alexandria property proceedings: 1. Declare that, at the time of its sale on 16 September 2016, the Plaintiff and the Defendant were the owners as tenants in common in equal shares of the land comprised in ["the Alexandria property" – address not published] and were and are entitled to the division of the net proceeds of such sale equally between them. 2. Declare that: 1. the Plaintiff as against the Defendant is entitled to an award in the sum of $447,899.38 on his claim for the balance of his entitlement to such net proceeds of sale; and 2. the Defendant as against the Plaintiff is entitled to an award in the sum of $4,774.12, on her claim for an account for the benefits flowing from her advance of $60,000 to the mortgage offset account in respect of the said land 1. Judgment and order for the Plaintiff against the Defendant in the sum of $469,712.78 comprising; 1. the balance of the awards in 2. a) and b) above, namely $443,125.26; and 2. interest on such balance from 16 September 2016 up to judgment but only for three years for the reasons indicated at the rate of 2% per annum, namely $26,587.52. 1. Order that the Freezing Order of the Court made in proceedings 2016/371835 on 12 or 15 December 2016 be varied only so as to enable funds in the sum of $469,712.78 to be paid or transferred to the Plaintiff from [account No. 1856]. 2. Order that the Defendant take any necessary steps and sign all necessary documents to procure the payment of such sum of $469,712.78 into the Trust account of the solicitors for the Plaintiff by 4.00pm on 5 February 2020. 3. Stand over the proceedings to 10 February 2020 at 9.30am, with the view to vacating the said Freezing Order subject to payment having been made pursuant to Order (5) above. 1. In proceedings 2017/100262 Metcalf v Zhang, the Waterloo property proceedings: 1. Declare that, as between the Plaintiff and the Defendant, the land comprised in ["the Waterloo property" – address not published] is held beneficially as to a 22% interest therein by the Plaintiff and as to a 78% interest therein by the Defendant. 2. Order that Graeme Beattie, accountant, of Worrells Solvency and Forensic Accountants, [address not published] and Christopher Pappas, accountant, of MKL Accounting and Financial Services, [address not published] be appointed trustees of said the land. 3. Order that the said land be vested in such trustees subject to any incumbrances affecting the whole of it but free from any incumbrances, if any, affecting any undivided shares or shares therein to be held by the said trustees upon the statutory trust for sale under Division 6 of Part IV of the Conveyancing Act 1919. 4. Order that either of the parties be at liberty to purchase the said land whether at auction or by private treaty. 5. Order that after the sale of the said land the Trustees shall deduct from the proceeds of sale, the commission and other expenses of any real estate agent, the legal expenses of the Trustees in respect of the sale and of transferring the said land to the purchaser and that the balance of the sale moneys shall be paid as to 22.00% thereof to the Plaintiff and, as to 78.00% thereof to the Defendant. 6. Stay Orders (2) to (5) hereof until 5pm on 14 February 2020. 1. In both the Alexandria property proceedings and the Waterloo property proceedings: 1. Order that the defendant pay 30 per cent of the plaintiff's total costs of both proceedings as agreed or assessed. 2. Order that each of the said trustees and the parties has liberty to apply on 7 days' notice. 3. Direct the solicitors for the plaintiff provide to the defendant on or before 29 January 2020 copies of their up-to-date bills of costs in both 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. Decision last updated: 19 December 2019