Capolingua v Da Silva

Judgment

1. There is an outstanding question of costs in these proceedings, which primarily concerned an application by the plaintiff under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of a property he co-owns with the defendant.
2. On 4 May 2017 orders were made for the appointment of trustees for sale after the Court delivered its judgment in Capolingua v Da Silva (No 2) [2017] NSWSC 527. In an earlier judgment (Capolingua v Da Silva [2016] NSWSC 1212) the Court declined to appoint trustees, instead adjourning the proceedings so as to enable certain contractual pre-conditions to a sale of the property to be fulfilled. The Court held that an obligation of the plaintiff (as the party seeking sale) under a Deed between the parties, to conscientiously and diligently market his interest in the property for a period of one year, had not yet been satisfied. In its second judgment, the Court held that the obligation had by that time been satisfied, and it was appropriate to proceed to appoint trustees for sale.
3. The proceedings also involved a claim for rectification of the Deed, and a cross-claim brought by the defendant against the plaintiff. The rectification claim was resolved by consent at a relatively early stage in the proceedings. The cross-claim originally sought the appointment of trustees for partition instead of sale, and damages for various alleged breaches of the Deed. The partition claim was later deleted, as was the damages claim save for the allegation that the plaintiff was in breach by bringing his s 66G application. Ultimately, that aspect of the cross-claim was not pressed either, and the cross-claim was dismissed.
4. The parties agreed that the question of costs could be determined on the papers. Written submissions have been received from both parties in accordance with directions made to that end.
5. In brief, the plaintiff submits that he was the successful party and that costs should follow the event, so the defendant should pay his costs of the proceedings including his costs of the cross-claim. The defendant submits that, save for the costs of the first hearing, the usual order in s 66G cases should apply so that the costs of both parties should be paid from the proceeds of sale. In relation to the costs of the first hearing, the defendant submits that she was successful so the plaintiff should pay her costs.