Breust v Anderson (No 2)

Evidence

2. The evidence in support of the application is provided by affidavits of: (a) Mr Torline (the trustee for sale) dated 5 June 2024, 25 July 2024, 18 February 2025, and 5 December 2025; (b) the plaintiff dated 5 December 2025; and (c) Mr Patrick (the plaintiff’s solicitor) dated 16 December 2025.

3. Various other evidence which formed the basis for the original orders was also referred to during the course of submissions.

4. There was no appearance by the defendant.

Consideration

5. I made orders giving possession and permitting the sale of the property on 12 June 2024.

6. The plaintiff gave notice of the claim the subject of these proceedings in a number of ways prior to the making of those orders. The defendant continued to reside at the property during that time.

7. The defendant has never entered a formal appearance in the proceedings. However, he did file an application in proceeding dated 27 November 2024 seeking a stay of the orders for delivery of possession. That application was resolved by consent, but the stay was subsequently lifted on 21 February 2025.

8. The history of dealings between the trustee for sale and the defendant are outlined in some detail in the affidavits of Mr Torline dated 25 July 2024, 18 February 2025 and 5 December 2025. They demonstrate that Mr Torline acted with a very significant degree of patience and accommodation towards the defendant and his interests. On the other hand, the defendant appears to have conducted himself in an unreliable and unusual manner in relation to the property. Notwithstanding that the defendant was living in the property, it was in a state of disrepair which would be considered to be highly unusual. There was some evidence of mental health difficulties and a tendency to hoard which is consistent with the state of the premises and the defendant’s inability to tidy up which is disclosed in the evidence of Mr Torline.

9. Eventually, on 12 July 2025, the property was sold at auction for $737,000. As part of settlement, $66,379.10 of outstanding rates was paid to the ACT Revenue Office. The amount outstanding of $12,496.74 was paid to Icon Water. The net amount remaining after payment of sale expenses was $616,847.83. An interim payment to the defendant of $447,338 was subsequently made by Mr Torline.

10. The expenses incurred by Mr Torline and his staff amount to $43,418.10 and he anticipates that an additional $2500 will be incurred in order to finalise the matter. This gives a total of $45,918.10. He has also incurred $14,473.56 in disbursements, giving a total of $60,391.66.

11. At the time of the original orders, a cap of $20,000 was put on the costs of the trustee for sale. The costs incurred by the trustee have been substantially increased by the lack of cooperation received from the defendant. There is no injustice to the defendant by allowing to be paid in full from the proceeds of sale the substantially increased costs incurred by the trustee.

12. The plaintiff has incurred $69,792.97 in legal costs and disbursements up to and including today. This includes counsel’s fees of approximately $16,000. Once again, these legal costs were substantially increased beyond what they might have been as a result of the disengagement and lack of cooperation from the defendant both before and after orders for the sale of the property were made by the court.

13. The plaintiff seeks an order for the payment of those costs on an indemnity basis or alternatively a solicitor and client basis or alternatively a party and party basis. In any event, she seeks that the costs ordered to be paid be assessed as a gross sum pursuant to r 1720(3)(c) of the Court Procedures Rules 2006 (ACT) including the costs ordered to be paid on a party and party basis by Burns AJ previously.

14. In my view, the circumstances of this case are such that the plaintiff is entitled to costs on an indemnity basis. That is because, for reasons which remain unclear, the defendant refused to engage with the plaintiff prior to the commencement of the proceedings in order to resolve the matter without the need for litigation. He then failed to engage with the process of litigation which led to the orders for sale. He has not engaged constructively with the process of sale notwithstanding the very patient and tolerant efforts of Mr Torline to engage with him. The whole exercise would have been avoided had he engaged reasonably with the plaintiff in the first instance. The unreasonableness of the defendant’s overall course of conduct makes it appropriate for the plaintiff to recover her costs on an indemnity basis.

15. I have examined the evidence in support of the quantification of the plaintiff’s costs. Those costs are not unreasonable in the circumstances, having regard to what was necessary in light of the approach taken by the defendant.

16. Further, it is appropriate that they be ordered by way of a gross sum. Notwithstanding the multiple opportunities given to the defendant to participate in the proceedings or to cooperate with the process of sale of the property, he has not done so. The prospects of him engaging with the costs assessment process are negligible. The requirement to go through the process is likely to simply increase the costs and expenses which the plaintiff will incur and which the defendant will be liable to pay. In circumstances where an indemnity order is made and hence there is only a limited task involved in the assessment of the appropriate amount of costs, it is appropriate that the court undertake that exercise in order to finalise the matter.

17. Having regard to the evidence as to the plaintiff’s costs and my assessment of them as not being unreasonable in the circumstances, it is appropriate to make a gross sum costs order so as to allow them to be paid out of the balance of the proceeds of the sale of the property.

18. It is appropriate to also include in the gross sum costs order the amounts ordered to be paid by Burns AJ on a party and party basis. That would involve some adjustment of the overall amounts in question to reduce them from what would be recoverable on an indemnity basis. I consider that a deduction of $1000 will, having regard to the nature of the costs incurred in relation to the application before Burns AJ, be an appropriate adjustment in the circumstances.

19. The plaintiff made payments of $200 per fortnight towards outstanding water rates as a result of an agreement with the creditor Icon Water from 21 July 2023 until the property was sold and the Icon Water debt was paid in full. The payments that she made totalled $10,600. It is appropriate that that amount be reimbursed to her out of the funds available to the trustee.

Orders

20. The orders of the Court are: (1) Pursuant to order 16(i) of the orders made by Mossop J dated 12 June 2024, the further charges of the trustee for his time and the time of his staff and for disbursements be paid to the trustee in the sum of $60,391.66. (2) The plaintiff’s costs of the proceedings (excluding the costs ordered by Burns AJ on 21 February 2025 but including the reserved costs and costs ordered on 28 November 2024) be paid by the defendant on an indemnity basis. (3) The costs payable pursuant to the order of Burns AJ and pursuant to order 2 made today be fixed as a gross sum of $68,792.97. (4) The trustee is authorised to pay, prior to disbursement of any balance to the defendant from the proceeds of the sale of the property: (a) pursuant to orders made on 12 June 2024 to the plaintiff as reimbursement for water rates paid by her since 1 April 2023 the sum of $10,600; (b) the trustee’s costs and expenses referred to in order 1; and (c) the legal costs referred to in order 3.

I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: