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[2025] NSWSC 530
General information, not legal advice.
Supreme Court of NSW
2025-05-23
Pike J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Burns v Burns [2025] NSWSC 530
Hearing dates: 23 May 2025
Date of orders: 23 May 2025
Decision date: 23 May 2025
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision: (1) Grant leave to the plaintiff to discontinue the proceedings and dispense with the requirement for any notice of discontinuance to be filed.
(2) Order the plaintiff to pay the defendant's costs of the proceedings, assessed in a gross sum of $3,500 plus GST.
Catchwords: COSTS – no final hearing on the merits – doomed to fail - leave to discontinue proceedings – whether plaintiff (son) should be ordered to pay defendant’s (mother) costs – no question of principle COSTS – gross sum costs order – where assessment process would cost considerably more than the amount of costs – where insufficient information – broadbrush approach applied – gross sum costs ordered – no question of principle
Legislation Cited: Conveyancing Act 1919 (NSW) s 74O
Cases Cited: Tran v Bakour (No 2) [2025] NSWSC 272
In the matter of Nutrimonde Pty Ltd [2024] NSWSC 806
Texts Cited: Nil
Category: Procedural rulings
Parties: Wade Peter Burns (Plaintiff)
Deborah Joan Burns (Defendant)
Representation: Counsel:
N Li (Plaintiff)
H Zhao (Defendant)
Solicitors:
Outwest Legal (Plaintiff)
John Allanson & Associates (Defendant)
File Number(s): 2025/00106833
Publication restriction: Nil
This is a rather unfortunate dispute between a mother and son.
There are two aspects to the controversy that I am asked to quell:
Whether the plaintiff (the son) should be granted leave to discontinue his claim or whether it should be dismissed.
Associated with the first issue, whether the plaintiff should be ordered to pay the defendant's costs of the proceedings and, if so, whether a gross sum costs order should be made.
The first debate is an arid one in circumstances where it was not suggested that any dismissal would preclude fresh proceedings being commenced.
The real dispute was as to costs in circumstances where the proceedings are not going ahead and there has been no hearing on the merits. The relevant principles in this regard were, understandably, not in dispute. They were comprehensively set out by McGrath J in I**n the matter of Nutrimonde Pty Ltd [2024] NSWSC 806 at [56]-[100].
A brief outline of the relevant facts is as follows.
The plaintiff lodged a caveat on the title to the defendant's property in April 2019. The estate or interest claimed in the caveat was by virtue of an agreement dated 1 May 2017. The details supporting the claim were stated as "caveator has borrowed money to do renovation work". On 4 March 2025, the plaintiff was served with a lapsing notice dated 27 February 2025. On 19 March 2025, proceedings were commenced by the filing of a summons. No application for short service was made. Only interim relief was claimed extending the caveat until further order or alternatively seeking an order pursuant to s 74O of the Conveyancing Act 1919 (NSW) that the plaintiff have leave to lodge a further caveat in respect of the land. No final relief was claimed in the summons.
An affidavit in support of the summons was filed by Andi Warda, whose occupation is said to be "property investor". The first paragraph of that affidavit records that Andi Warda is, in fact, the solicitor for the plaintiff. The affidavit relevantly states at paras 5 to 10:
5. The plaintiff has informed me and I verily believe that the plaintiff claims to have a caveatable interest in the property acquired by him through contributions of $350,000 provided to the defendant for renovating and improving the property.
6. Since serving of the Lapsing Notice, the Plaintiff received correspondence from the Defendant stating that she wished for the lapsing notice to be withdrawn. Annexed and marked D is a copy of the letter.
7. On 18 March 2025, I rang the office of John Allanson & Associates and left a message for the principal John Allanson. John Allanson returned my call and advised that, at this stage, his office was obtaining instructions if they were instructed to accept service and would advise us once those instructions were received.
8. On 19 March 2025, I received a phone call from John Allanson, advising that he is instructed to accept service.
9. As the letter from the registered proprietor was addressed to her solicitors, there is some ambiguity as to whether her son, the Plaintiff, who is the caveator can rely on that letter as communication from the register proprietor that she wishes to withdraw the lapsing notice. This application has been made for the avoidance of doubt. Upon the defendant being served, I propose to ask her to consent to the attached orders to dispose of this matter. Annexed and marked E is a copy of the short minutes.
10. I am instructed that if the defendant changes her position from that expressed in her letter, the plaintiff intends to seek leave from the Court to put on further evidence disclosing the basis for the caveatable interest claim by him.
The matter was first returnable before the Court on 2 May 2025 when I was advised that it was agreed that the proceedings were no longer going ahead but that the two disputes that I have outlined above existed between the parties. I made directions for evidence and submissions to be filed, which occurred. The plaintiff relied upon three affidavits made by Andi Warda. The defendant relied upon an affidavit of the defendant's solicitor, Mr Allanson. Written submissions were also filed by each party and there has been a further period of short oral submissions this morning.
In the circumstances, it is appropriate to order that the plaintiff has leave to discontinue the proceedings but on the condition that the plaintiff pay the defendant's costs of the proceedings.
Notwithstanding the matters set out in the affidavit that was filed with the summons - which could in any event have been clarified before proceedings commenced - a large part of the proceedings were, in my view, doomed to fail. The caveat lapsed 21 days after service of the lapsing notice. No application was made to the duty judge for any interim relief. The summons did not specify any final relief. Further, it is unclear whether the caveat or the affidavit in support of the summons disclosed a caveatable interest.
I turn now to consider whether a gross sum costs order should be made. The principles in this regard were, understandably, not in dispute. I recently summarised those principles in Tran v Bakour (No 2) [2025] NSWSC 272 at [26] and following. In my view, it is appropriate in this case to make a gross sum costs order. This, if for no other reason, is because if I was to make an order that the costs be assessed, the assessment process would cost far more than the amount of costs in issue.
I turn now to consider the amount sought by the defendant. The written submissions sought amounts on two bases - $11,589 on an indemnity basis and $9,657 on the ordinary basis. Nothing was said in submissions so as to justify an order that the costs be payable on an indemnity basis.
In relation to the costs claimed on an ordinary basis, the evidence put forward by the defendant's solicitor is most unsatisfactory. The fees claimed appear, from the narrations set out in the evidence, to begin in February 2025. This is notwithstanding the fact that the proceedings were not commenced until 19 March 2025. Further, it is far from clear from the narrations that have been included in the evidence, what a lot of the work related to. This is in circumstances where the cost disclosure letter issued by the solicitors for the defendant to the defendant sets out that the defendant's solicitors were to do work beyond that related to the proceedings. It is also clear from the affidavit material that, in addition to the dispute the subject of the proceedings, there are other disputes between the parties at the time of these proceedings.
Further, I am somewhat troubled by the fact that in inter partes correspondence during the course of these proceedings and at a time when the parties were negotiating whether to discontinue proceedings or have them dismissed, the solicitors for the defendant wrote to the solicitors for the plaintiff seeking a gross sum cost order in the amount of $19,000. That far outstrips the amount that is currently sought, even on an indemnity basis. No explanation has been provided by the solicitors for the defendant as to the claim for $19,000. The differing amounts claimed, and the unsatisfactory underlying evidence, gives me no confidence as to the appropriate gross sum to order. Further, there is in my view, a real issue as to the proportionality of any costs that I am to award in terms of the amount and subject matter of what is in issue in the proceedings. These proceedings were agreed at the first directions hearing to be of no further utility. They only ever concerned an application to extend a caveat.
Doing the best I can and adopting a very broadbrush approach, it seems to me that an appropriate figure for a gross sum costs order is $3,500 plus GST. This is principally based on allowing, in full, the costs of counsel retained to act in the proceedings for the defendant. It is clear from counsel's invoices that the work that he carried out was in relation to the proceedings. I am also prepared to allow a small amount in solicitor's costs on top of the amount incurred or paid to counsel. I accept that the amount of $3,500 has been determined on an extremely broadbrush basis but there is no alternative in the circumstances. The alternative, as I have set out above, of requiring the parties to go to an assessment, would only prolong the dispute and further increase costs.
For these reasons I make the following orders:
Grant leave to the plaintiff to discontinue the proceedings and dispense with the requirement for any notice of discontinuance to be filed.
Order the plaintiff to pay the defendant's costs of the proceedings, assessed in a gross sum of $3,500 plus GST.
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Burns
Burns [2025] NSWSC 530