Campbell v Tran

Supreme Court of NSW|2024-03-25|Before: Meek J, Meeks J

Solicitors: Bartier Perry Pty Ltd (Plaintiffs) Self-represented (First Defendant) File Number(s): 2022/59121

Introduction

HIS HONOUR: On 6 March 2024, I delivered reasons for judgment in this matter: see Campbell v Tran [2024] NSWSC 204 (principal judgment/PJ). These reasons assume a familiarity with the principal judgment and I will adopt its nomenclature and abbreviations.
The proceedings involved relief sought by the plaintiffs consequent upon the sale of three properties based, they say, and as I have found, upon misleading or deceptive conduct engaged in by Ms Tran. Mr Campbell provided monies to Ms Tran referable to buying into a share of the "MAP Business": PJ [3].

What is the appropriate judgment sum?

The table which is Annexure B to Mr Bennett's submissions sets out nine amounts for which judgment is claimed. Each of those nine amounts relates to specific sums referred to in the reasons for judgment. The ninth amount is a calculation of rent recoverable on the basis of it being a sum of $550 per week from 24 October 2022 to 18 March 2024.
Ms Tran did not make any particular submissions against the calculation of that sum. There is no suggestion that the amounts calculated are inappropriate. In those circumstances, I propose that the amount for which judgment should be entered for the plaintiffs against Ms Tran is the total of the nine sums identified in the table, namely $1,169,948.47.

Should interest be payable on the judgment sum and, if so, in what amount?

Pursuant to s 100 of the CPA, in proceedings for the recovery of money, the Court may include interest in the amount for which judgment is given, the interest to be calculated at such rate as the Court thinks fit.
There is no specifically prescribed rate for an award of interest up to judgment: see Maestrale v Aspite [2014] NSWCA 182 at [135] per Beazley P (as her Excellency then was) (Macfarlan and Barrett JJA agreeing). A guide for the rate of interest is set out in the Supreme Court Practice Note SC Gen 16. As to the calculation of pre-judgment interest, the Practice Note provides as follows: Calculating pre-judgment interest 4. Section 100 of the Civil Procedure Act 2005 provides for the making of orders for the inclusion of interest in judgments. 5. Practitioners and litigants should expect that where, pursuant to section 100 (1) and (2) of the Civil Procedure Act 2005, interest in respect of a pre-judgment period is to be included in a judgment, the Court will have regard to the following rates, being rates agreed upon by the Discount and Interest Rate Harmonisation Committee established following a referral by the Council of Chief Justices: (a) in respect of the period from 1 January to 30 June in any year - the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced, and (b) in respect of the period from 1 July to 31 December in any year - the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced.
In Wang v Yu (No 3) [2024] NSWSC 190, I noted as follows: 28. Statutory provisions allowing for the award of interest are to be construed according to their terms. However, as a general proposition, it is clear that the use of the permissive verb "may" in legislation giving power to Courts to award interest, phrased in discretionary terms, has been consistently construed by Courts in a manner suggesting that the circumstances in which an award of interest may be refused are rare and "almost invariably" interest is to be allowed when claimed: Falkner v Bourke (1990) 19 NSWLR 574 at 576A-C per Priestley JA. The decision of the High Court in Ruby v Marsh (1975) 132 CLR 642 at 644; [1975] HCA 32, construing in that case the then relevant Victorian provisions addressing interest, gives general support for that approach. 29. As the award of interest is essentially compensatory, the defendant's conduct in contesting the proceedings (whether or not reasonable and diligent) does not ordinarily provide a proper basis for either making or refusing an award of interest: e.g. Batchelor v Burke (1981) 148 CLR 448 at 455 per Gibbs CJ; [1981] HCA 30.
The figure proposed in the short minutes of order for pre-judgment interest is a sum of $176,516.85. I enquired as to the basis of the calculation of pre-judgment interest. Mr Bennett confirmed the calculation was done in accordance with the guide in the Practice Note at the rates referable to the cash rate published by the Reserve Bank of Australia. Ms Tran indicated that she had an opportunity to consider the calculations and she did not oppose them. In those circumstances, I propose that judgment be awarded for an amount of interest in the sum specified, namely $176,516.85.

Principles

In Wang v Yu (No 2) [2024] NSWSC 4, I stated as follows: Costs principles 83. Costs are in the discretion of the Court, subject to the Civil Procedure Act 2005 (NSW) (CPA), rules of Court and any other Act: s 98(1)(a) CPA. 84. The Court: (1) has full power to determine by whom, to whom and to what extent costs are to be paid: s 98(1)(b) CPA; and (2) may order that costs are to be awarded on the ordinary basis or on an indemnity basis: s 98(1)(c) CPA. 85. The general position is that if the Court makes any order as to costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: r 42.1 UCPR. 86. If the Court makes an order for dismissal of the proceedings, then generally speaking, unless the Court orders otherwise, the plaintiff must pay the defendant's costs of the proceedings to the extent to which they have been dismissed: r 42.20(1) UCPR. 87. Generally, costs payable to a party under an order of the Court are to be assessed on the ordinary basis: r 42.2 UCPR. 88. An award of costs, of its nature, is compensatory in the sense of being awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings. Costs are not awarded by way of punishment of the unsuccessful party: Latoudis v Casey (1990) 170 CLR 534 at 543 (per Mason CJ); [1990] HCA 59.
The Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provide a regime by which offers of compromise may be served to compromise any claim in the proceedings. In cases where an offer is made, a party who has obtained a favourable judgment outcome, having regard to the terms of the offer, is "entitled" to have its costs assessed on an indemnity basis from the beginning of the day following the date of the offer (or 11 am on that following day, if the offer was made on or after the first day of the trial), unless the Court orders otherwise: see generally rr 42.14, 42.15, 42.15A UCPR.
In contrast, for offers made outside the offer of compromise regime, such as offers expressed to be without prejudice except as to costs and relied upon in accordance with the principles in Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333 (Calderbank), there is no prima facie entitlement of a party who has achieved a favourable outcome (having regard to the terms of the offer) to have an indemnity costs order made in its favour. Rather, the making of a Calderbank offer is one of a number of circumstances the Court takes into account in exercising its discretion to make an order for costs on an indemnity basis.

On what basis should costs be assessed?

On 30 September 2020, Mr Campbell sent Ms Tran a valuation for each of his three properties. The valuation for the Oran Park Property was $640,000: PJ [160]. On 25 January 2021, a deed of mutual rescission of contract was prepared by Mr Campbell's conveyancer to give effect to a reduction in the purchase price proposed for the Oran Park Property. A new contract was issued with a price of $700,000: PJ [165].
On 21 July 2023, the plaintiffs' former solicitors, Macfarlane Law, sent to Ms Tran an offer to settle the proceedings without prejudice save as to costs. The letter indicates in its terms that it is a form of Calderbank offer (offer).
The particular details of the offer are set out in paragraph 6 of that letter, albeit read in the context of the entirety of the letter, as follows: 6. With a view to resolving this dispute, my clients are willing to compromise their claim against you and Red Sienna Pty Ltd. To that end, they are willing to accept from you in full and final settlement of their claim: A. That you transfer the Oran Park property back to them, unencumbered. This will put my clients back into the position they were in prior to selling the property to you to facilitate the alleged purchase of equity in MAP Home Loans; B. That if stamp duty is payable on the transfer of the Oran Park property to my clients, you indemnify my clients and pay the stamp duty amount; C. That you pay them the sum of $550,000 in compensation for the loss you caused them to suffer with respect to the sale of the Labrador and Longford properties to you and payments totalling $85,000 referred to in paragraph 3 above; and D. That you pay them $70,000 towards the costs and disbursements they have incurred to date (which exceed $114,000).
I asked Mr Bennett about the offer. Mr Bennett indicated that the offer, in terms of assessing whether it proposed an outcome of the proceedings that was more or less favourable than the outcome actually determined, should be considered from, in a sense, two perspectives. First, a mathematical perspective in terms of the value of benefit ultimately derived at a final hearing and, secondly, from the nature of the species of relief sought.
In relation to the calculation of benefit, the offer asserted that the value of the Oran Park Property had increased by about $100,000 to $200,000. Thus, on the face of it, the offer proceeded on the basis that the Oran Park Property was at least valued in the order of $800,000 to $900,000 at the time the letter was sent (i.e. a base of $700,000 plus $100,000 to $200,000). The offer proposed an outcome which included: transfer by Ms Tran of the Oran Park Property back to the plaintiffs, unencumbered; indemnification in respect of any stamp duty liability; payment to the plaintiffs in the sum of $550,000; and, in addition, payment of $70,000 towards costs and disbursements the plaintiffs had incurred, which was said in the letter to exceed $114,000.
Without addressing the stamp duty liability, the offer proposed, in substance, is a benefit of $1.35 million to $1.45 million (i.e. the presumed unencumbered value of the Oran Park property at $800,000 to $900,000 plus $550,000).
On the figures that I have found, the plaintiffs are entitled to a judgment less than that. Specifically, judgment in the sum of $1,346,465.32 (being the combination of the two amounts, $1,169,948.47 plus interest of $176,516.85). Mr Bennett, for his part, accepted that analysis of the financial benefit of the outcome of the proceedings compared to that proposed in the letter of offer.
Further, he indicated that the outcome proposed in the letter was different in the form of species of relief and he accepted that the relief as proposed had not been obtained.
There are differences between Calderbank offers and offers of compromise as I have indicated above. In the circumstances, I am not satisfied that it was unreasonable for Ms Tran to not accept the offer.
Mr Bennett nonetheless submitted there should be an order for indemnity costs and a gross sum costs order on seven grounds. In my assessment, the first four grounds were more particularly addressed to the question whether costs should be assessed on an indemnity basis and the last three grounds were directed towards supporting a gross sum costs order. I raised this with Mr Bennett and he confirmed that this was the way his submission should be understood. I will address his submissions accordingly.

Basis of assessment of costs

First, Mr Bennett submitted that Ms Tran's conduct of the proceedings prolonged them, and she was unsuccessful in her defence of them.
As to Ms Tran's lack of success, Mr Bennett noted that I found Ms Tran had made misrepresentations including, in a sense, falsely claiming credits on properties. Whilst finding against Ms Tran on the hearing and in the reasons, I do not consider that it is a compelling reason for awarding indemnity costs. The two issues are, in a sense, different issues.
As to Ms Tran prolonging the proceedings, Mr Bennett referred to three particular matters which were said to have occasioned delay, namely Ms Tran had: (a) foreshadowed seeking an adjournment of the hearing in the period immediately prior to its commencement; (b) served evidence out of time and sought to lead new evidence during the hearing; and (c) raised new claims in cross-examination.
As to these three matters, I note that: (a) Ms Tran did not ultimately make an adjournment application; (b) the hearing was not ultimately extended by Ms Tran's service of an affidavit the day before the hearing as Mr Bennett, to my assessment, readily adapted to the late service of the affidavit; and (c) Mr Bennett was able to cross-examine without apparent difficulty regarding the "new claims". Overall, I am not persuaded that Ms Tran's conduct of the proceedings was such as to warrant an order for indemnity costs on that ground.
Secondly, Mr Bennett submitted that the weak (or non-existent) position Ms Tran had to defend the proceedings justifies a special costs order, citing the decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233; [1993] FCA 801. Further, he made reference to the decisions of Woodward J in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364; (1998) 81 ALR 397 at 401 and the Court of Appeal in Parisi v Nigro [2006] NSWCA 121. My findings against Ms Tran on the hearing were, in part, dependent upon findings in relation to the credit of the parties and the reliability of their evidence. I elaborated on this in the reasons for judgment. Whilst I found that Ms Tran had engaged in misleading or deceptive conduct, that conduct was referable to the substantive claim, as distinct from her actual conduct of the court proceedings per se. I am not persuaded that Ms Tran's conduct of the proceedings per se warrants an indemnity costs order on that ground.
Thirdly, Mr Bennett submitted that Ms Tran did not act reasonably in defending the proceedings in light of the position that evolved during the hearing; namely, that no business venture had ever started and that she accepted that she would refund the sales and marketing program fee. I am not satisfied this ground otherwise justifies an award for indemnity costs.
As to the first matter, on 14 November 2021, Ms Tran sent a text to Mr Campbell stating, inter alia, "[w]e haven't started any business officially yet with Loan Market that's the part where you were suppose[d] to get accredited and start writing loans for yourself from Jan 2022": PJ [188]. As to the second matter, Ms Tran's writing off of the sales and marketing program fee was evident from, or at least foreshadowed in, her email to Mr Campbell dated 3 October 2021. Both the text and email were part of the evidence adduced by the plaintiffs on the hearing. In that respect, I do not regard them as necessarily having come to light purely in the context of the hearing itself.
Fourthly, Mr Bennett submitted that the letter of 21 July 2023 was unreasonably rejected. For the reasons I have indicated, I am not satisfied that is the case.
In those circumstances, I am not persuaded that an order for costs should be made on an indemnity basis as opposed to the ordinary basis. I find that the order for costs should be costs assessed on the ordinary basis.

Should a gross sum costs order be made?

Pursuant to s 98(4)(c) of the CPA, the Court may make an order for payment of costs of a "specified gross sum" instead of assessed costs.
Various considerations may guide the Court in determining the desirability of a specified gross sum order. They include matters such as the likely complexity of the assessment process and the likelihood that the additional costs of a formal costs assessment will disadvantage the successful party.
I now address the final three aspects of Mr Bennett's submissions.
First, Mr Bennett submitted that, given the nature of the relief granted (being a judgment for payment of funds), the opportunity to enable both parties to sever ties is attractive. He submitted that the alternative is a costs assessment process that will prolong the parties' entanglement, citing Hamod v State of New South Wales (No 13) [2009] NSWSC 756 at [29] per Harrison J.
Secondly, Mr Bennett submitted that the length of time for which Ms Tran has had the benefit of the plaintiffs' funds warrants a timeline being imposed on the parties' dealings with the properties and funds.
Thirdly, he submitted that, despite the above, the plaintiffs have been conservative in their claim regarding discounts on the gross sum costs order sought.
The first and second matters, insofar as they refer to the severing of ties and the length of time for which Ms Tran has had the benefit of the plaintiffs' funds, are matters which are relatively common to many contestable court cases. Whilst I accept those matters do bear some relevance, I do not consider those matters per se to be strongly compelling reasons for making a specified gross sum costs order.
To my mind, a strongly compelling factor in favour of the making of a gross sum costs order is the potentiality for a cost assessment process to be stymied or prolonged. On the facts here, there is the clearest of indications from Ms Tran, in light of what I have set out above in her email dated 20 March 2024, that she proposes to file for her bankruptcy.
If that were to occur, I consider that any assessment process might, at least initially, be stymied by a stay of proceedings, and would in any event likely be prolonged and attended by complexity for reasons associated with such bankruptcy.
I consider that, in those circumstances, it is appropriate to make an order for a specified gross sum instead of assessed costs.
Calculations prepared by Mr Kallipolitis indicate that the total costs paid by the plaintiffs in the proceedings are in the order of $292,310.
In his affidavit, and more particularly his exhibit, he has set out details of those costs in terms of invoices for work done. Ms Tran has had at least some opportunity to consider those.
Ms Tran raised an issue regarding the fact that there had been some indication that Bartier Perry was engaged on a pro bono basis. I asked Mr Bennett to address that issue, and he provided an explanation. Ms Tran, as it is recorded in the transcript, accepted the explanation given by Mr Bennett in that regard.
Mr Kallipolitis indicates that, on an assessment of costs, in his professional experience costs on the ordinary basis will be discounted by approximately 20% to 30%. He proposed a figure of costs in the sum of $219,375.24 (being professional costs of $152,962.16 inclusive of GST and disbursements, including counsel's fees, in the sum of $66,413.08 inclusive of GST). He indicates that those costs had been discounted by 30% and, as to disbursements, by 10%, notwithstanding that he would expect there would be minimal, if any, discount applied to disbursements on assessment.
There is no suggestion that the amount calculated is inappropriate. The proposed specified gross sum is at or towards the high end of the scale of discounts that would be applied by an assessor, based on Mr Kallipolitis' evidence. In those circumstances, I propose to order that the gross sum costs order in favour of the plaintiffs be in the sum of $219,375.24.

Should "payment-in" orders be made?

The plaintiffs sought orders for payment into Court of funds as follows: 1. Order that the proceeds of sale for the land comprised in QLD folio identifier [XXX/XXXXXXXX], commonly known as [XXX] Marine Parade, Labrador, Queensland 4215 ('Labrador Property') to be used to pay out mortgage No [XXXXXXXXX] with the Commonwealth Bank of Australia on the Labrador Property and the remainder of the proceeds of sale of the Labrador Property to be paid into Court. 2. Order that the proceeds of sale for the land comprised in NSW folio identifier [XXXX/XXXXXXX], commonly known as [XX] Ambrose Street, Oran Park, New South Wales 2570 ('Oran Park Property') to be used to pay out mortgage No [XXXXXXXX] with the Commonwealth Bank of Australia on the Oran Park Property and the remainder of the proceeds of sale of the Oran Park Property to be paid into Court.
There was some discussion during submissions regarding whether payment-in orders were appropriate or not. Ms Tran opposed such orders. There does not appear to be a dispute that the Commonwealth Bank of Australia (CBA) is dealing with the properties in its capacity as mortgagee. There is no apparent dispute that the CBA is entitled to exercise its powers of sale as mortgagee in respect of the properties. As mortgagee, the CBA has duties to deal with the proceeds appropriately.
Ms Tran says that the properties are cross-collateralised and that is a factor to take into account in determining whether any payment-in order should be made.
Ultimately, Mr Bennett indicated that the plaintiffs' position (from his perspective) would be appropriately safeguarded and he would not press for payment-in orders to be made if: 1. leave were given to the parties, any interested parties and, specifically, the CBA to apply to the Court in respect of the working out of these orders; and 2. there was a direction that Ms Tran indicate to the plaintiffs' solicitors the contact details of the CBA staff dealing with the sale of the Labrador and Oran Park properties by 5.00pm tomorrow.
Ms Tran indicated that she would be able to provide those details and would be susceptible to a direction to that effect.
In those circumstances, Mr Bennett did not press for the payment-in orders.
In any event, as matters currently stand, I would have been reluctant to order payment in of funds, at least without notice to the CBA and giving it an opportunity to be heard.

Conclusion

The orders of the Court are as follows: 1. Orders that the First Defendant pay the First and Second Plaintiffs $1,169,948.47. 2. Orders interest in the amount of $176,516.85 pursuant to s 100 of the Civil Procedure Act 2005 (NSW). 3. Notes the effect of orders 1 and 2 is that judgment will be entered for the sum of the amounts in orders 1 and 2 namely $1,346,465.32, and directs entry of judgment for that amount. 4. Orders that the First Defendant pay the First and Second Plaintiffs' costs in the amount of $219,375.24 pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW). 5. Grants leave to the parties and any interested party, including the Commonwealth Bank of Australia, to apply to Meek J to seek orders in respect of the working out of these orders including in respect of payment into Court of any part of the proceeds of sale of the Labrador and Oran Park properties. 6. Directs the First Defendant to indicate to the Plaintiffs' solicitors the name and contact details of the contact officer of the Commonwealth Bank of Australia dealing with the sale of the Labrador and Oran Park properties by 5:00pm on 26 March 2024.

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: 03 April 2024

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