Dennis G. Pamplin Pty Limited atf the Dennis G Pamplin Family Trust v Ann Margaret Irwin in her capacity & as administratrix of the estate of the late Adrian Dennis Pamplin

Catchwords: PRACTICE AND PROCEDURE – discontinuance – whether term should be imposed as a condition of grant of leave preventing commencement of fresh proceedings
COSTS – appropriate costs orders as condition of grant of leave to discontinue – no question of principle

Legislation Cited: Civil Procedure Act 2005 (NSW) s 98(4)(c)
Conveyancing Act 1919 (NSW) Div 6 of Pt 4 and s 66G(1)
Limitation Act 1969 (NSW) ss 47 and 65

Cases Cited: Australian International Academy of Education Inc v The Hills Shire Council [2011] NSWLEC 208
Heartlink Ltd v Jones (2007) 35 WAR 190
Irwin v Pamplin & Ors (No 4) [2024] NSWSC 73
Irwin v Pamplin (No 5) [2024] NSWSC 484
Mendonca v Tonna [2024] NSWSC 1024
Pamplin v Irwin [2024] NSWCA 213

Texts Cited: Nil

Category: Costs

Parties: Dennis G. Pamplin Pty Limited atf the Dennis G Pamplin Family Trust (First Plaintiff)
Marie Pamplin (Second Plaintiff)
Ann Margaret Irwin in her capacity & as administratrix of the estate of the late Adrian Dennis Pamplin (First Defendant)
Liam Bailey & Christopher Palmer atf sale of the real property title folio identifiers X/XXXX, X/XXXX, X/XXXX and X/XXXX (Second Defendant)

Representation: Counsel:
P Folino-Gallo (Plaintiffs)
P G Sharp (First Defendant)
Solicitors:
Hitch Advisory (Plaintiffs)
Mersal & Associates Pty Ltd (First Defendant)
Holman Webb Lawyers (Second Defendant)

File Number(s): 2024/00448682

Publication restriction: Nil

JUDGMENT

Introduction

1. The parties agree that these proceedings should be discontinued. They disagree, however, as to the terms of the discontinuance and in relation to one aspect of the costs order that should be made.

2. The first defendant contends that:

(a) the Court should impose as a condition on the grant of leave to discontinue, a condition that the plaintiffs will not claim the same relief sought in prayer 3 of the summons filed 3 December 2024 in fresh proceedings against the defendants in relation to the Kenthurst Properties (as defined below); and (b) the plaintiffs should pay the second defendants’ costs of the proceedings on the indemnity basis on the terms that the second defendants’ entitlement not be levied, charged or executed against the first defendant’s 50 percent interest in the Properties or the proceeds of sale from the Properties.

3. The plaintiffs oppose these conditions being imposed.

4. The parties agreed that they were content for the issues to be dealt with by the Court on the papers. Written submissions were received on behalf of the plaintiffs and first defendant. The second defendants adopted the submissions of the first defendant.

A brief overview of the facts

5. By summons filed on 3 December 2024, the plaintiffs sought, as final relief, a declaration that the second plaintiff, Ann Margaret Irwin, holds their interests in certain properties – defined as the Kenthurst Properties – being the real property comprised in folio identifiers X/XXXX, X/XXXX, X/XXXX and X/XXXX “and/or their interests in the statutory trust created 9 April 2024 on trust for” the first plaintiff. Interim relief was also sought in the summons to the effect that the second defendants be restrained until further order from re-entering or otherwise dealing with the Kenthurst Properties.

6. The background to these proceedings appears to be earlier proceedings in the Equity Division. In Irwin v Pamplin & Ors (No 4) [2024] NSWSC 73, Henry J held that there was an express trust of the Kenthurst Properties (defined in those proceedings as the Pitt Town Road Properties) in favour of Adrian and Lionel Pamplin in equal shares. Her Honour’s conclusion in this regard was upheld in Pamplin v Irwin [2024] NSWCA 213.

7. In Irwin v Pamplin (No 5) [2024] NSWSC 484 at [34], Parker J amended the orders made by Henry J in certain respects, including by making a declaration that the second plaintiff in these proceedings holds a one-half share in the Kenthurst Properties on express trust for the late Adrian Pamplin. By order 2 of the orders made by Parker J on 9 April 2024, his Honour ordered that the second defendants be appointed as trustees for the sale of the Kenthurst Properties pursuant to s 66G(1) of the Conveyancing Act 1919 (NSW) (the Act).

8. By order 3, made 9 April 2024, Parker J ordered that the Kenthurst Properties vest in the second defendants subject to encumbrances affecting the whole of the respective properties, but free from encumbrances (if any) affecting any undivided share therein to be held by the statutory trustees on the statutory trust for sale under Div 6 of Pt 4 of the Act.

9. In these proceedings, the plaintiffs contend that the first plaintiff has an interest in the Kenthurst Properties. This is notwithstanding that the first plaintiff was a party to the earlier proceedings in the Equity Division and no such claim was made in these proceedings.

10. On 20 December 2024, the first defendant filed a motion which sought, inter alia, that the Court determine as a separate question before the determination of all other issues in the proceedings, whether the plaintiffs’ summons be dismissed or permanently stayed on the basis of Anshun estoppel, abuse of process, or issue estoppel, or because the claim for final relief is time-barred pursuant to ss 47 and 65 of the Limitation Act 1969 (NSW).

11. On 12 February 2025, Lindsay J heard the plaintiff’s claim for interim relief – namely restraining the second defendants (the statutory trustees for sale) from further dealing with the Kenthurst Properties. His Honour dismissed the claims for interim relief and stood the proceedings over to the Real Property List on 21 February 2025, noting that on that occasion, the Court may be asked to consider the motion filed by the first defendant dated 20 December 2024 seeking, as set out above, a separate determination of whether the plaintiff’s claims for relief are barred by, inter alia, Anshun estoppel.

12. When the matter was before me as the Real Property List Judge on 21 February 2025, I was advised that all parties were in agreement that the proceedings should be discontinued, but disagreed in relation to the two matters that I am now asked to determine.

Condition requiring leave for fresh proceedings

13. I turn to first consider whether the Court should impose, as a condition of granting leave to discontinue, a condition that the plaintiffs will not claim the same relief sought in prayer 3 of the summons in fresh proceedings against the defendants in relation to the Kenthurst Properties.

14. The first defendant contends that such a term is appropriate so as to ensure finality because the plaintiffs’ claims – both for interlocutory and final relief – were precluded by an Anshun estoppel. The first defendant contends that prayer 3 of the summons, if made, would conflict with an earlier finding and declaration made by Henry J that there was an express trust of the Kenthurst Properties in favour of Adrian and Lionel Pamplin in equal shares. It is contended that the claim made in the summons is that the first plaintiff, as trustee for the DGP Family Trust is the ultimate beneficial owner of the Kenthurst Properties pursuant to a purchase monies resulting trust. So the argument runs, a resulting trust, (as claimed by the plaintiffs in these proceedings) cannot co-exist with the express trust that was found by Henry J. The claim as presently made should have been (but was not) raised as a defence in the earlier proceedings before Henry J. Both plaintiffs were a party to those earlier proceedings.

15. The plaintiffs contend that there is no reason to require the plaintiffs to agree to or render a discontinuance on terms that are contrary to the default position set out in UCPR r 12.3. The plaintiffs further contend that no finding was made by Lindsay J to the effect that Anshun estoppel attached to the claim made by the plaintiffs in prayer 3 of the summons by reason of Henry J’s judgment.

16. It was not in dispute that the Court has power to impose conditions, or to require an undertaking, as a form of the grant of leave to discontinue, and the conditions upon which leave can be granted might include an undertaking not to commence subsequent proceedings or assert particular causes of action in subsequent proceedings: see Heartlink Ltd v Jones (2007) 35 WAR 190 at [45]ff per Martin CJ. At [48] Martin CJ observed:

The question to be determined … is whether any particular terms or conditions should be imposed in order to prevent manifest injustice to, or the loss of some advantage by, the liquidators.

17. In Australian International Academy of Education Inc v The Hills Shire Council [2011] NSWLEC 208, Biscoe J observed at [13] that a public interest is also involved in formulating conditions attached to a grant of leave to discontinue. In the context of a condition preventing future identical claims without leave, Biscoe J observed at [13]:

The principle underlying such a condition is that defendants and the courts are entitled not to be repeatedly troubled by identical claims unless strong countervailing considerations of justice demand it.

18. I am not persuaded that it is appropriate to impose as a condition of leave to discontinue that fresh proceedings seeking the same relief in prayer 3 not be permitted to be commenced. Such a condition would, in effect, be a determination in the first defendant’s favour of the contention that agitating prayer 3 in these proceedings was precluded by Anshun estoppel or is otherwise an abuse of process. Although a number of observations were made against the plaintiffs, no such determination was made by Lindsay J on 12 February 2025. (His Honour expressly noted that the Court may be required to consider the first defendant’s motion when the matter returned to Court). I have not had the benefit of complete argument on this point and, whilst I can see much force in the first defendant’s position, the position is not, in my view, so obvious that I should determine it now by imposing a condition, particularly in the absence of complete argument.

19. If fresh proceedings are commenced by the plaintiffs making a claim for relief in the same or similar terms to prayer 3 of the summons, it is open for the defendants to contend that such a claim is precluded by Anshun estoppel or is otherwise an abuse of process. The first defendant is thus not disadvantaged by the condition it seeks not being imposed.

Costs

20. The effect of the orders sought by the first defendant is that the first defendant should not be indirectly burdened by a costs order in favour of the second defendant. Henry J determined that the first defendant has a 50 percent beneficial interest in the Kenthurst Properties as administrator of Adrian Pamplin’s estate. It is contended that it would be unfair to the first defendant if a costs order in favour of the second defendants were levied against the Kenthurst Properties without accounting for the first defendant’s interest. Any costs order made in favour of the second defendants should clarify that such costs not be levied against the first defendant’s interests in those properties.

21. The plaintiffs contend that there is no principled reason to argue that the plaintiffs should be required to pay the second defendants’ costs on an indemnity basis as it is clear that the second defendants are entitled to be indemnified by trust assets. It is further contended that there is no unusual feature or relevant misconduct that would justify departing from the usual order for costs.

22. In my view, it is appropriate in the circumstances of the present case, for the costs order to be made in the form contended for by the first defendant.

23. In Mendonca v Tonna [2024] NSWSC 1024, Kunc J recently set out some general propositions with respect to costs and their application to trustees – see [154]. Of particular relevance in the present case are propositions five and six set out by his Honour to the effect that a trustee is entitled to a complete indemnity from the trust estate for all costs and expenses properly incurred with the execution and administration of the trust, and that the indemnity must be given effect to in such a way as to make the burden fall upon the beneficiaries equitably having regard to the circumstances under which the costs, charges and expenses were incurred.

24. In the present case, whilst it is true that the second defendants are entitled to be indemnified out of the sale proceeds for their costs and expenses, unless any particular order is made, this would involve the first defendant in effect, bearing half of those costs, including the costs of these proceedings. In circumstances where these proceedings, having been commenced, are now being abandoned by a discontinuance, it is not appropriate that the first defendant should be required to bear any of the costs incurred by the second defendants in relation to them. Those costs should be borne by the plaintiffs.

25. The first defendant sought liberty to apply for a gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) within 14 days. I propose to grant such liberty.

Conclusion and orders

26. For the reasons set out above, I am not satisfied that the Court should impose, as a condition of leave to discontinue the proceedings, a condition that the plaintiffs not be permitted to commence fresh proceeding seeking the same relief sought in prayer 3 of the summons. I am satisfied, however, that the particular costs order sought by the first defendant in relation to the second defendants’ costs should be made.

27. The orders of the Court are:

28. The defendants’ notice of motion filed on 20 December 2024 be dismissed.

29. Leave is granted to the plaintiffs to file a notice of discontinuance on the following terms:

(a) the plaintiffs discontinue the whole of the proceedings; (b) the plaintiffs to pay the first defendant’s costs of the proceedings; (c) the plaintiffs to pay the second defendants’ costs of the proceedings on the indemnity basis on terms that the second defendants’ entitlement not be levied, charged or executed against the first defendant’s 50 percent interest in the properties with title folio identifiers X/XXXX, X/XXXX, X/XXXX and X/XXXX (the Properties) or the proceeds of sale from the Properties.

3. Liberty to the first defendant to bring an application pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) for a gross sum costs order, such application, if any, to be filed within 14 days.

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