Memik v Taylor (No 2)

Catchwords: COSTS – Whether ordinary costs should be apportioned – Where it is appropriate to depart from the general rule where breaches of the deed were established – Apportionment of costs ordered
CONTRACTS – Remedies – Where the parties were asked to address the appropriate form of relief in light of the primary judgment – Where the only relief sought was possession of property – Where Court found that relief was not available – Proceedings dismissed

Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Liu v Lam (No 2) [2025] NSWSC 264

Texts Cited: Nil

Category: Costs

Parties: Cengiz Memik (First Plaintiff)
Suzan Memik (Second Plaintiff)
Anne Marilyn Taylor (Defendant)

Representation: Counsel:
First and Second Plaintiff (Self Represented)
P Lane (Defendant)
Solicitors:
First and Second Plaintiff (Self Represented)
Legal Aid NSW (Defendant)

File Number(s): 2024/297632

Publication restriction: Nil

JUDGMENT

1. By a Statement of Claim (“SOC”) filed on 13 August 2024, Cengiz Memik and Susan Memik (“the plaintiffs”) brought a claim seeking vacant possession of the property at 26 Brian Street, Balgownie NSW 2519, being the whole of the land in title reference 69/193312 (“the property”) from Marilyn Anne Taylor (“the defendant”). The plaintiffs did not make any claim for damages in the proceedings.

2. The defendant and her son, Mitchell Dellapina (“Mr Dellapina”), were formerly the registered proprietors of the property. On 10 October 2018, the defendant and Mr Dellapina (“the vendors”) entered into a contract with the plaintiffs for the sale of the property (“the contract for sale”). On that same day, the defendant entered into a deed of life estate with the plaintiffs (“the Deed”), which granted the defendant a life estate in the property and the improvements located within the property, subject to and conditional upon:

3. the defendant regularly maintaining the property and improvements (“the maintenance condition”);

4. the defendant keeping the property and improvements insured for building replacement value and public liability in the sum of $20,000,000 (“the insurance condition”),

(collectively, “the conditions”).

3. Upon settlement of the contract for sale on 21 November 2018, the plaintiffs became the registered proprietors of the property, and the Deed became binding.

4. In the primary judgment, the Court accepted that the defendant was a vulnerable individual for whom stable housing and accommodation was particularly important, especially against the backdrop of the disabilities suffered by her, which included colitis, severe depression, anxiety and chronic psoriatic arthritis.

5. The Court found that the Deed must be interpreted in the context that the defendant was giving up her right of proprietorship of the property in favour of the plaintiffs, and that the plaintiffs promised the defendant that she could live in part of the property for an extended and indefinite period of time.

6. The objective intention of the parties was to confer on the defendant more than a personal right of residence. Rather, a right in personam arose because the defendant has an equitable proprietary interest. The conferral of a right to lodge a caveat under the Deed was the indicium that the parties intended the interest granted to be an interest that would support that lodgement of a caveat, that is, “any… equitable estate or interest in land” within the meaning of s 74F of the Real Property Act 1900 (NSW).

7. The Deed effected the grant of a life estate in fee simple in equity, binding the plaintiffs as purchasers in personam despite their registration as proprietors and amounted to an interest in land sufficient to support a caveat and carrying such rights as attach to a life tenant of land in equity.

8. In late 2023, the plaintiffs claimed that the defendant was in default of the Deed by reason of her failure to comply with the conditions or rectify that default upon notice. The plaintiffs served a notice of termination on the defendant on 16 July 2024 (“the termination notice”), advising the defendant to vacate the property on or before 2 August 2024.

9. The defendant continued to occupy the property on the basis that the termination notice was invalid and did not put an end to her interest in the property under the Deed.

10. By a judgment delivered on 27 November 2025, Memik v Taylor [2025] NSWSC 1418 (“the primary judgment”), the Court made the following findings (at [219] – [222]):

“[219] The Court has found breaches with respect to cl 2.2(a) of the Deed, although the breaches found are narrower in scope than contended for by the plaintiffs and not of a nature and seriousness as would ground the relief of termination sought by the plaintiffs.

[220] Clause 2.2(a) of the Deed is an intermediate term, and the nature and seriousness of the breaches were not such as to constitute a basis for relief by termination.

[221] As to cl 2.2(b) of the Deed, the primary finding of the Court is that the defendant did not breach that intermediate term. In any event, the nature and seriousness of any non-performance by the defendant could not constitute a basis for the termination of the Deed. In all relevant respects, any failure to take out insurance by the defendant was a product of the plaintiffs’ own conduct.

[222] Furthermore, the Court has found that, in all the circumstances, the defendant has available relief against forfeiture. However, relief against forfeiture would necessarily be dependent upon appropriate conditions, having regard to the need for maintenance in various areas, discussed at [197].”

11. At the close of the primary judgment, the Court observed that neither party had addressed the Court as to the appropriate form of relief, and thereby provided a limited opportunity for the parties to make submissions with respect to the appropriate form of relief, in the light of the Court’s findings in the primary judgment.

12. Turning to the question of costs, the Court made the following observations in the primary judgment (at [224]):

“[224] Notwithstanding that the Court has rejected the primary form of relief sought by the plaintiffs, the defendant has not been entirely successful in her defence of the SOC. If the Court were assessing costs on that basis, the preliminary view would be that the plaintiffs would pay 70% of the defendant’s costs on an ordinary basis, as agreed or assessed…”

13. Again, the Court provided an opportunity for the parties to address the question of costs in response to those observations.

14. In the result, the Court made the following orders and directions on 27 November 2025:

15. The defendant shall file and serve Short Minutes of Order reflecting this judgment, together with a submission in support thereof, not exceeding 3 pages in length, on or before 4pm on Monday, 1 December 2025.

16. The plaintiffs shall file and serve any submissions in reply by 4pm on Wednesday, 3 December 2025.

17. In accordance with that timetable, the Court received submissions from Ms Patricia Lane of counsel for the defendant on 1 December 2025, and Mr Cengiz Memik on behalf of the plaintiffs on 3 December 2025.

18. By the defendant’s submissions, the following orders were sought in the final disposition of the proceedings:

19. The proceedings be dismissed.

20. The plaintiffs pay the costs of the defendant as agreed or assessed.

21. I turn firstly to the appropriate orders to be made in the disposition of the proceedings, other than the question of costs, in the light of the primary judgment.

22. Mr Memik’s submissions as to the disposition of the proceedings were as follows:

“1. Relief Sought

1.1 The Defendant’s submissions incorrectly narrow the scope of the proceedings.

1.2 The Plaintiffs sought termination of the Deed of Life Estate and orders consequential upon termination, not merely possession.

1.3 The proceedings therefore involved multiple substantive issues requiring judicial determination.

2. Breaches of the Deed

2.1 The Court made findings that the Defendant breached the Deed in several respects.

2.2 These findings demonstrate that the proceedings were reasonably brought to enforce obligations arising under the Deed.

2.3 The issues raised were genuine, substantial, and required resolution by the Court.

2.4 The Defendant’s submissions minimise the breaches, but the findings show recurrent noncompliance with obligations under the Deed, reinforcing that the proceedings were properly instituted.”

19. Mr Memik was incorrect to submit that the SOC brought by the plaintiffs sought any relief other than possession. In effect, the only relief which the plaintiffs sought in the proceedings was an order for possession of the property, although, in substance, the relief sought by the plaintiffs also incorporated the termination of the Deed.

20. Whilst the Court found there were breaches of the Deed by the defendant, it was ultimately determined that the plaintiffs failed to establish that they were entitled to possession of the property as a result of those breaches. The Court concluded that the defendant did not commit any breach of the Deed which would give rise to a basis, in law, to terminate the Deed.

21. No issue estoppel has been argued as arising from the breaches, which might bind the defendant as a result of the primary judgment. Nor, as I have mentioned, is there any claim for damages.

22. The Court also considered the issue of relief against forfeiture. The Court’s observations were favourable to the defendant, in that respect, but those considerations were not dipositive of the proceedings.

23. In those circumstances, and having regard to the determination of the proceedings by the Court, the only appropriate order is that the plaintiffs’ claim should be dismissed. The Court was not called upon to consider any other form of remedy that might arise in the circumstances.

24. I turn then to the question of costs.

25. Mr Memik made separate submissions, in this respect, to which I will refer to below. However, it should be firstly observed, particularly as the plaintiffs are self-represented, that it is likely that the plaintiffs also relied upon their submissions as to the disposition of their claim, in relation to costs. The particular submissions made by the plaintiffs as to costs, were as follows:

“3. Costs

3.1 Costs are a discretionary matter under s 98 of the Civil Procedure Act 2005 (NSW) and r 42.1 of the Uniform Civil Procedure Rules.

3.2 The proceedings involved genuine questions of fact and law, and the Plaintiffs did not act unreasonably, improperly, or in bad faith.

3.3 The Court’s findings of breach, together with the multiple substantive issues raised, mean this is not an appropriate case for costs to follow the event.

3.4 The Defendant’s characterisation of the issues as minor or irrelevant does not reflect the Court’s findings.

3.5 The Plaintiffs acted promptly and consistently to enforce the Deed. The proceedings were neither frivolous nor without foundation.

3.6 In all the circumstances, the interests of justice support that no costs order be made.”

26. In effect, the plaintiffs’ submissions were that the Court should exercise its discretion under r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) to depart from the usual rule that costs follow the event and that the Court should form a view that some other order should be made.

27. The defendant sought an order for ordinary costs, principally upon the basis of the disposition of the claim by the Court. It was contended that the findings by the Court as to breaches of the Deed do not provide a basis on which the Court might consider making “some other order”. It was emphasised that the claim was confined to a claim for possession, and that the plaintiffs had failed in making good that claim, notwithstanding the breaches found by the Court.

28. Neither party sought to address the observations of the Court as to costs in the conclusion of the primary judgment, as set out above.

29. The appropriate principles for the consideration of these questions are found in Liu v Lam (No 2) [2025] NSWSC 264 at [18]-[21] (per Walton J), and are as follows:

“[18] In Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2), the New South Wales Court of Appeal described the general position on apportioning costs in cases of mixed success as follows:

“Under rule 42.1 of the *Uniform Civil Procedure Rules 2005 (*NSW) the general rule is that the Court is to order that costs follow the event. The “event” may be characterised in more than one way. Generally the "event" refers to the result of the claim or counterclaim, as the case may be, and may be understood as referring to the practical result of a particular claim: Doppstadt Australia Pty Ltd v Lovick & Sons Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15] per Ward, Emmett and Gleeson JJA. Where there has been a mixed outcome in the proceedings, and it is appropriate to entertain the process of apportioning costs as between different issues in the proceedings, in general such an exercise will be carried out on a relatively broad brush basis, and largely as a matter of impression and evaluation by the Court: Doppstadt at [19]; James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36]; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22.”

[19] The principles applicable to determining when and how costs should be apportioned between issues in proceedings were stated by the Court of Appeal in Bostik Australia Pty Ltd v Liddiard (No 2):

“• Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported).

• In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal.

• If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27].

• Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed).

• A separable issue can relate to “any disputed question of fact or law” before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34].

• Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272.”

[20] Hence, the starting point when examining costs is the general rule that costs follow the event. Where there has been a mixed outcome in the proceedings, the Court will determine if it is appropriate to engage in the process of apportioning costs as between different issues. Importantly, the process of apportioning costs does not automatically follow where there is mixed success on multiple discrete issues as the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed.

[21] Where the Court determines that it is appropriate to apportion costs, the relevant question is then how to apportion costs. This question necessarily requires an impressionistic and discretionary evaluation. The exercise should be carried out on a broad-brush basis, taking account of the degree of success and the likely extent of costs associated with different aspects of the case. The Court is entitled to take into account the importance of matters upon which the parties have been successful or unsuccessful, the time occupied, and the ambit of the submissions made, as well as any other relevant matter.” (footnotes omitted)

30. In my view, the issue of the breaches of the Deed was a material consideration in the proceedings and occupied a significant component of the parties’ submissions and time during the proceedings. There were mixed results as between the parties as to that issue.

31. The defendant cannot meet that assessment by pointing to the fact the breaches did not establish the relief sought by the plaintiffs. That is so because the defendant strenuously contested the existence of any breaches. The defendant argued, unsuccessfully, that there were no acts or omissions by the defendant that constituted a breach of the Deed, and that any breaches, such as they may be, were mere promises or, alternatively, intermediate terms. The Court found that the breaches were intermediate terms.

32. In those circumstances, it appears to me that there is a proper basis to find that the usual order as to costs should not be made, and that costs should be apportioned.

33. As no party sought to traverse the original impression of the Court with respect to the apportionment of costs, I propose to adopt the approach outlined in the Court’s preliminary observations. The Court’s approach, in that respect, was broad brush, which is the proper approach in assessing costs in this context.

ORDERS

34. The Court makes the following orders:

35. The proceedings be dismissed.

36. The plaintiffs pay 70% of the costs of the defendant on an ordinary basis, as agreed or assessed.

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