Bidmonta Pty Limited v Debra Kay McMillan

Supreme Court of NSW|2011-02-28|Before: Rothman J

nce Commission, Commonwealth of Australia & Graham Grayson [1997] FCA 1414; (1997) 80 FCR 284 Moschi v Lep Air Services Ltd; Lep Air Services Ltd v Rolloswin [1973] AC 331 Newcombe v Newcombe (1934) 34 SR (NSW) 446 Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 Yates Property Corporation Pty Ltd v Boland [2000] FCA 1106; (2000) 179 ALR 664 Category: Consequential orders Parties: Bidmonta Pty Limited (Plaintiff) Debra Kay McMillan (First Defendant) David Robert McMillan (Second Defendant) Bobbette Lee McMillan (Third Defendant) Commonwealth Bank of Australia (Fourth Defendant) Perpetual Limited (Fifth Defendant) Perpetual Trustee Victoria Limited (Sixth Defendant) Representation: Counsel: J Turnbull (Plaintiff) E Picker (First Defendant) J Armfield (Second Defendant) K Fraser (Sixth Defendant) Solicitors: Ronayne Lawyers (Plaintiff) Peter Dawson & Associates (First Defendant) Taylor & Scott Lawyers (Second Defendant) Kemp Strang Lawyers (Sixth Defendant) File Number(s): 2009/292573

Judgment 1The parties have resolved the substantive controversy between them and consent orders and/or terms of settlement have been tendered. Two substantive issues were sought to be agitated in relation to the orders that the Court would issue arising from those resolutions. The first, concerning whether certain obligations under the terms of settlement are dependent or independent, was but faintly agitated. The second, concerning an application for a Bullock order for costs, was a matter of some substantive argument. 2It is necessary to set out, very briefly, the factual matrix underpinning the substantive proceedings. 3The second defendant, who carries on business as an electrician, commenced trading in shares in or about 2003 and, at the end of 2007, lost approximately $400,000 as a result of his share trading. The volume of his business also decreased dramatically at or about the same time. 4The financial difficulties suffered as a consequence of the foregoing resulted in a desire by the second defendant to obtain moneys to meet his recurrent debts. His own properties, owned jointly with his wife, were the subject of mortgages, but he managed, in a manner currently irrelevant, to borrow a small amount of money using that property as security. 5The amount borrowed by that process was, even though secured against joint properties, done without the knowledge of his wife (the third defendant). Some two weeks after the initial loan, in accordance with appropriate procedure, the Department of Lands notified that a caveat had been lodged on the properties causing the third defendant to be "extremely upset". 6Following that disagreement between the second and third defendant, the second defendant sought to obtain further moneys, this time using as security the property of his mother (the first defendant). 7On or about 9 May 2008, the second defendant executed documents which purported to effect an equitable mortgage over the property of his mother and also executed, in the name of his mother, an authority to deposit funds into his own account. On the basis of those documents, and the purported equitable mortgage created thereby, the plaintiff lent moneys to the first defendant, which moneys were paid into the account of the second defendant. A mortgage broker facilitated the execution of these documents. 8Perhaps unsurprisingly, the second defendant was unable to meet the obligation under the loan agreement and gained an extension of time by guaranteeing, in his own name, the payments under the mortgage. It seems that no repayment was made and, on 5 February 2009, the plaintiff commenced proceedings against the first and second defendants. Those proceedings, commenced by statement of claim, relied on the mortgage, as if it were registered, as the basis for the cause of action, and, it seems, not on the contract, if any, between the parties. It also sought an order for payment by the defendants (including the second defendant) without specifying the particular cause of action. 9On or about 13 March 2009, the second defendant purported to file a defence (which was later struck out as being in bad form) by which the second defendant stated that money is owed and "has been worked out with the plaintiff that either a superannuation payout or refinance will settle debt whichever occurs first". 10Whatever be the basis for the foregoing statement in the purported defence, to which reference has already been made, repayment was not made. There were, however, apparently, conversations between the second defendant and an officer or director of the plaintiff in respect of repayment and the second defendant made unsuccessful efforts to refinance the loan during the period that followed. 11On 7 May 2009, the first defendant filed a defence in which she denied that she had mortgaged her property and denied that she was a party to the mortgage, denied that she received the $127,000 secured by it, and denied that she had any obligation to repay the moneys. 12On 8 May 2009, the Court, as stated, struck out the purported defence, filed on 13 March 2009, on the basis that it was bad in form. 13On 17 November 2009, the plaintiff obtained default judgment against the second defendant for an amount that was said to be the entirety of the principal of the loans and interest at the rates prescribed by the loan agreements. 14On 10 February 2010, the plaintiff filed a notice of motion seeking leave to amend its statement of claim to add specific performance as a remedy, and to proceed against additional defendants. On 24 February 2010, the Court granted leave to amend the statement of claim. 15On 1 March 2010, one of the second defendant's properties was sold, the first mortgage over it discharged and the remainder paid into a controlled money account. 16On 5 March 2010, the second defendant filed a notice of motion to set aside the default judgment and, on 4 June 2010, the Court set aside the default judgment. 17On 15 March 2010, the plaintiff filed an amended statement of claim. The amended statement of claim, as earlier stated, claimed specific performance of the contract "in the form of a mortgage"; continued to claim an order for possession and sale (and incidental orders relating thereto) and orders in relation to other mortgages of the first and/or second defendants (which are currently irrelevant); and, as previously stated, claimed against the first and second defendants an amount of money plus interest "in accordance with the terms of the mortgage". 18On 18 March 2010, the second defendant filed an affidavit dated 9 March 2010 which, in part, is in the following terms: "23 In or about 9 May 2008 I signed those documents in the name of my mother and returned them to Mr. Hall at his office the same day. I met Mr. Hall at his office and had a conversation with him which included words to the effect of: Me: 'Here's the signed documents'. Simon: 'Okay thanks. I'm in a rush I've got a settlement but I'll do my final checks and transfer the money when I get back'. I handed the documents to Mr. Hall and left the premises. 25 On the same day Mr. Hall telephoned me requesting an authority from my mother to deposit funds into my account. We had a conversation which included words to the following: Simon: 'I need an authority from your mother to be able to release the funds to you'. Me: 'I'll get one organized straight away and fax it over to you'. I signed my mothers name on that letter. Annexed hereto and marked with the letter "E" is a true copy of authority to release funds." (There was no paragraph 24 to the affidavit.) 19This follows on from an affidavit filed 11 September 2009 and sworn 4 September 2009 of the first defendant which, after referring to a conversation relating to a purported loan to both the first defendant and second defendant, states: "5. I have not taken out any loan with David McMillan, ... who is my son and the Second Defendant, at all and have not given permission for any loan to be secured against my house. 6. I had not seen or signed any mortgage or any other documents using my house as security with or for David. I did not receive the letter ... addressed to me and did not see it until after these proceedings commenced ... ." 20On 2 September 2010, the Court (Associate Justice Harrison) dismissed a motion brought by the first defendant to dismiss the proceedings against her. 21There are a number of other procedural matters that require reciting. On 12 May 2010, the second defendant made an offer of settlement, which offer was inclusive of costs and for an amount that was less than the amount otherwise subject of the terms of settlement ultimately provided to the Court. On 18 May 2010, that offer was rejected and the plaintiff made a counter-offer for an amount significantly greater than the amount contained in the terms of settlement, again inclusive of costs. That latter view is of course dependent upon the amount of costs, but, given the amount by which the offer exceeds the amount ultimately agreed, can be a confident prediction. 22On 8 February 2011, an offer of compromise issued from the second defendant to the plaintiff. Thereafter there was discussion between solicitors for the second defendant and plaintiff, part of which discussion included an indemnity for any liability of the plaintiff for legal costs incurred and ordered to be paid in relation to the first defendant. On 22 February 2011, the offer of compromise was accepted. On 23 February 2011, the plaintiff's solicitor wrote to solicitors for the second defendant referring to the offer made and accepted and giving an estimate of party/party costs. It included the following paragraph: "Please further note that the proceedings as between our client and Debra McMillan [the first defendant] remain listed for hearing on 28 February 2011. In the event that any order is made requiring our client to pay Debra McMillan's costs of the proceedings our client will seek a Bullock order against your client in respect of those costs." 23There is no suggestion or submission that the claim for a Bullock order in relation to the costs of the first defendant is unavailable or in any way inconsistent with the acceptance of the offer of compromise. As a consequence, the Court does not deal with that issue. 24One of the reasons that the aforesaid attitude to the offer and acceptance may have been taken may be the terms of settlement, resolving the issues between the parties, and which terms are Exhibit A in the proceedings. Those terms of settlement including the following: "9. Note the agreement of the plaintiff and second defendant that they will execute a deed of mutual release releasing one another from all claims that they may have had against the other arising from or relating to the mortgage and guarantee which are the subject of these proceedings other than the right to enforce these orders and agreements, and the Plaintiffs [sic] right to make application in the proceedings for the 2 nd Defendant to indemnify the Plaintiff for costs payable by the Plaintiff to the 1 st Defendant ." The emphasised passage of the foregoing is a handwritten amendment to what is otherwise, substantially, a typewritten document. 25Lastly, the Court should deal with the resolution of the matters other than those between the plaintiff and the second defendant. The third defendant, being the wife of the second defendant, played no part in the proceedings. The proceedings were dismissed as against her, with no order for costs. The fourth defendant, fifth defendant and sixth defendant are each mortgagees and were added as defendants (together with the third defendant) by the amended statement of claim. Against each of them the proceedings have either been discontinued or dismissed and there has been no order as to costs. 26In relation to the first defendant, consent orders have been issued in the following terms: "1. Judgment for the First Defendant on the Plaintiff's Amended Statement of Claim; 2. The Plaintiff to pay the First Defendant's costs agreed within the next 28 days in the sum of $40,000.00; 3. Subject to order 2 above, all other costs as between the Plaintiff and the First Defendant are vacated. The Court notes the agreement between the Plaintiff and the First Defendant that in consideration of entering into these terms the plaintiff agrees to take all steps and do all acts and things and pay all fees necessary to remove the Caveat numbered xxxxxxxx and notation xxxxxxxx from the property at Mount Druitt forthwith." 27The terms of settlement, by which both the plaintiff and second defendant seek to have the proceedings resolved, include a judgment in favour of the plaintiff as against the second defendant of an amount which represents $127,000 plus interest calculated in accordance with the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005; an order that the plaintiff provide an executed withdrawal of a caveat, lodged against the second defendant's properties, within 28 days of the making of these orders; an order dismissing the cross-claim; an order that the second defendant pay the plaintiff's costs as agreed or assessed on the ordinary basis up to 8 February 2011, but not as to the cross-claim; certain incidental orders in relation to the moneys held in the controlled moneys account, to which reference has already been made; and the provisions of clause 9, which is recited above.

Mutuality 28As early stated, the issue of mutuality was faintly raised by the parties, seemingly for resolution by the Court. This issue as early stated, is concerned with whether the orders that the Court is asked to make requiring the plaintiff, in effect, to withdraw the caveat are dependant upon the payment of moneys by the second defendant. In other words, the issue was whether the second defendant was required to execute the withdrawal of the caveat in the absence of payment of the amount required under the consent orders to be paid by the plaintiff to the second defendant. 29In the context of deeds, and, a fortiori, in the context of contracts, the difference between dependent and independent obligations was expressed in the following terms: "Where each of two parties to an indenture makes a covenant with the other, and the two covenants are not in terms connected, the question may arise where the they are independent (in the sense that each party is bound to perform his covenant irrespective of whether the other performs his) or dependent (in the sense that one party is not bound to perform, or to continue to perform, his covenant unless the other has performed, or does perform, his, previously or concurrently or subsequently).... An implication of intention that the performance of one covenant shall be conditional on the performance of the other arises where the nature of the covenants is such that any breach of either of them would necessarily be regarded by reasonable men as absolving the other party from performing his covenant (references omitted). But the question is in every case one of intention." ( Newcombe v Newcombe (1934) 34 SR (NSW) 446, at 450-451, per Sir Frederick Jordan CJ (Stephen and Maxwell JJ concurring).) 30In the case of contracts, there is an ordinary contractual presumption, in modern times, that a simple contract presumes mutual obligations, rather than independent obligations: see, inter alia, Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1942] UKHL 4; [1943] AC 32; Automatic Fire Sprinklers Pty Limited v Watson [1946] HCA 25; (1946) 72 CLR 435. 31Reference should also be made to the statement of Lord Diplock in Moschi v Lep Air Services Ltd; Lep Air Services Ltd v Rolloswin [1973] AC 331, at 346, in which his Honour said: "The law of contract is part of the law of obligations. The English law of obligations is about their sources and the remedies which the court can grant to the obligee for a failure by the obligor to perform his obligation voluntarily. Obligations which are performed voluntarily require no intervention by a court of law. They do not give rise to any cause of action." 32The issue that was sought to be agitated in this aspect of the matter that is before the Court is an issue that does not, at this time, arise. The judgment that has been entered requires the plaintiff to pay money and requires the second defendant to withdraw a caveat. The law requires each obligation to be performed. Whether those obligations are mutual is irrelevant to the nature of the order that is made. Further, the mutuality of the orders is not a matter which, on its face, would seem to have much practical impact. If one or other of the plaintiff or second defendant failed to meet its obligations under the terms of settlement (and the orders of the Court), leaving aside contempt proceedings, the other party could sue for enforcement. If the party suing for enforcement had not, at that time, complied with the orders, no doubt there would be issues associated with that prospect and/or counter claims. In either case no practical issue may arise. And in any case, the issue that might arise does not arise at the making of the orders, only on breach or at the time of their enforcement. 33As a consequence of the foregoing, as the parties were informed during the hearing, the issue that has been raised is academic, in the sense that it is not yet a justiciable controversy, but would involve the Court in giving an advisory opinion. The Court declines so to do.

Costs 34Leaving aside any inherent jurisdiction, the Court's discretion to award costs is governed by the provisions of s 98 of the Civil Procedure Act , which provides that costs are in the discretion of the Court, which has full power to determine by whom, to whom and to what extent costs are to be paid, and the basis upon which they should be assessed. The discretion must be exercised judicially and is further governed by the provisions of the Uniform Civil Procedure Rules, particularly Part 42. Prima facie, costs should follow the event, unless it appears to the Court that some other order should be made (UCPR 42.1). 35Particular principles apply to the awarding of costs in relation to proceedings that are settled. The usual approach reflects that which was stated by McHugh J in Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, at 624-625, in which his Honour said: "In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. ... If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases." 36This approach has been the general principle that has applied in relation to proceedings that have settled. But, as is clear from the comments of McHugh J, supra, that is the usual position, not the universal one. Often the court will examine, without hearing the matter on the merits, the original claim and determine that it was patently hopeless, or, alternatively that there was no, or no valid, defence to it: see Gribbles Pathology Pty Ltd v Health Insurance Commission, Commonwealth of Australia & Graham Grayson [1997] FCA 1414; (1997) 80 FCR 284 (per Finkelstein J); and Yates Property Corporation Pty Ltd v Boland [2000] FCA 1106; (2000) 179 ALR 664 (per Goldberg J). 37As stated above, in this case, the hearing on the merits was unnecessary. In effect, the second defendant has admitted to signing the mortgage and the letter of authority, on behalf of his mother, without authority so to do. In those circumstances, no defence, or no reasonable defence, is available to a claim, however structured, for damage flowing from that conduct. 38The second defendant submits that the pleadings were deficient and relied on the mortgage as if it were registered and did not raise a proper cause of action against the second defendant. 39The amended statement of claim sought payment of the moneys owing from the second defendant. The Court accepts that more appropriate, or more specific, causes of action may have been required. But such a complaint goes to the merits of the proceedings, which have been resolved. The second defendant accepts liability for his conduct. The inappropriateness of the pleadings giving rise to that liability does not, in this case, persuade the Court that, otherwise, appropriate orders ought not issue. 40It is also submitted, on behalf of the second defendant, that the proceedings were unnecessary after the filing of the affidavit by the first defendant, and possibly as a fall back position, after the filing of the affidavit by the second defendant. Neither is conclusive of the proceedings. The plaintiff had reasonably commenced proceedings to seek to enforce a loan, which it considered to be valid. 41During the course of those proceedings the first defendant alleged, in effect, that it was not a valid loan. That allegation of fact may or may not have been accepted by the Court. When the second defendant admitted to signing the document, there was still, at least hypothetically, an issue that may have arisen as to his authority to sign. In any event, it was not an unreasonable course to continue the proceedings until such time as they could be settled. Were that not the case, the plaintiff may have been caught without a cause of action or in two causes of action in which conflicting versions of events were accepted. 42In circumstances where the second defendant has received money from the plaintiff as a result of his own actions in signing documents on behalf of the first defendant, without authority so to do, it is not appropriate, and wholly unjust, for the plaintiff to be liable for the expenses of the first defendant in defending proceedings, which were taken reasonably and predictably as a result of the conduct of the second defendant. 43Bullock or Sanderson orders are not ordinarily granted. In order for such an order to issue, it is necessary, but not sufficient, for the joinder of both defendants to have been reasonable: Gould v Vaggelas [1985] HCA 85; (1984) 157 CLR 215, at 229, per Gibbs CJ. Plainly, in these proceedings, it was reasonable for the plaintiff to join both defendants. 44Further, and most importantly, it is the conduct of the second defendant that has required (and must have been understood to require) the commencement of proceedings against the first defendant. The second defendant has benefited from his conduct and his conduct, which unbeknownst to the plaintiff was unauthorised, was the cause of the commencement of proceedings against the first defendant. In those circumstances, it is fair and proper for the Court to impose liability on the second defendant for the costs that the plaintiff will incur on account of the first defendant: see Gould , supra. 45In light of the foregoing, the liability of the plaintiff for the first defendant's costs should be indemnified by the second defendant. 46The second defendant submits that those costs ought to be taxed. There is no suggestion that the consent orders made between the plaintiff and the first defendant were otherwise than at arms' length. In these circumstances, it seems inappropriate for the plaintiff to be "out of pocket" if, on assessment, it was found that some figure slightly less than $40,000 was payable. 47In any event, in the current circumstances, for the Court to make orders for assessment of the first defendant's costs (which are $40,000) would be to expend even more money on assessing the costs for which the plaintiff is liable. This course does not seem to accord with the injunction imposed upon the parties and the Court by s 56 of the Civil Procedure Act . Even without regard to the waste of costs and the issues raised by s 56 of the Civil Procedure Act , the Court should exercise its discretion to make the orders sought. 48At the hearing to issue judgment, the parties raised the date of effect of the judgment, particularly order 1 of the terms of settlement, which, at this stage, has not yet been the subject of formal order. The terms of settlement reflect an agreed position that the judgment date would be 28 February 2011 and the parties agree that the originally intended date should remain the date of effect of paragraph 1 of the orders made reflecting the terms of settlement. Pursuant to r 36.4(3) of the Uniform Civil Procedure Rules 2005, the Court orders that order 1 of the consent orders take effect on and from 28 February 2011 and that interest after judgment is calculated in accordance with s 101 of the Civil Procedure Act 2005 as if the judgment were made on that date. 49By consent, the Court orders:

Judgment in favour of the plaintiff as against the second defendant in the sum of $160,180.92 representing $127,000 together with $33,180.92 by way of interest from 1 May 2008 to 28 February 2011 at the Civil Procedure Act rates.
Order that within 28 days of the making of these orders, the plaintiff provide to the second defendant an executed withdrawal of caveat in relation to the property situated at 565 Ebenezer Road, Ebenezer (comprised in folio identifier 11/227211).
Order that the statement of claim is otherwise dismissed as against the second defendant.
Order that that the cross-claim filed by the second defendant is dismissed.
Order that in relation to the proceedings between the plaintiff and second defendant and without prejudice to any order for costs previously made, that the second defendant pay the plaintiff's costs as agreed or assessed on the ordinary basis up to 8 February 2011.
Make no order as to costs of the second defendant's cross-claim to the intent that the plaintiff and second defendant pay their own costs of the cross-claim.
Note the agreement between the plaintiff and the second defendant that the proceeds of the Westpac bank account number 032*** ***450 in the name "Taylor & Scott and Legal Ease Lawyers Pty Ltd ITF David Robert McMillan & Bidmonta Pty Limited Controlled Monies Account", presently holding the amount of $66,712.37 together with interest accumulated, shall be used to pay in part the judgment referred to in paragraph one above in reduction of the judgment debt referred to in paragraph one, such payments to be made within 14 days of today's date.
Order that the plaintiff and second defendant shall sign all documents necessary in order to effect the closure of the Westpac bank account 032*** ***450 as referred to in paragraph 7 above and disburse the monies to the plaintiff.
Note the agreement of the plaintiff and second defendant that they will execute a deed of mutual release releasing one another from all claims that they may have had against the other arising from or relating to the mortgage and guarantee which are the subject of these proceedings other than the right to enforce these orders and agreements, and the plaintiff's right to make application in the proceedings for the second defendant to indemnify the plaintiff for costs payable by the plaintiff to the first defendant. 50The Court further orders:
The second defendant pay the plaintiff $40,000, being the plaintiff's liability for the costs of the first defendant.
Otherwise the proceedings are dismissed.

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