Meszaros v Meszaros

Judgment

1. By a Summons filed on 8 December 2016 the plaintiff sought the appointment of trustees for the sale of land in Agnes Banks, New South Wales pursuant to s 66G of the Conveyancing Act 1919 (NSW). The plaintiff and the defendants are registered proprietors of the land as tenants in common in equal shares. The plaintiff is the mother of the defendant.
2. The parties advised the Court in March 2017 that they were close to settling the proceedings. The proceedings were subsequently adjourned a number of times to allow that process to occur. The parties entered into a deed on 5 May 2017 which provided for sale of the property and a procedure to resolve the dispute between the parties as to their respective entitlements to the proceeds. The deed did not make any provision for the costs of the proceedings.
3. An auction of the property occurred on 17 June 2017. It appears that there were no bidders at the auction. The Court has been informed that the parties then agreed to sell the property by private treaty. It is unclear whether the property has in fact been sold. In any event, the parties indicated in August 2017 that the principal relief sought by the plaintiff had been "resolved", but the question of costs had not. Orders were made with the consent of the parties for the question of costs to be determined on the papers. Submissions have been received from both parties in accordance with those orders.
4. The plaintiff submits that the defendant should pay her costs of the proceedings. The plaintiff says that she was justified in commencing the proceedings and that, although there was no determination on the merits, she would have been successful in obtaining an order for the appointment of trustees. The plaintiff also alleges that the defendant avoided service of the Summons, necessitating the filing of an application for substituted service which was abandoned after the defendant's solicitor agreed to accept service. She contends that the defendant acted unreasonably in only consenting to sale of the property once the proceedings were already on foot, thereby causing the plaintiff to incur the "unnecessary expense of prosecuting the litigation". The plaintiff further submits that the defendant's unreasonable conduct warrants a departure from the usual approach where there is no determination on the merits, which is that there is no order as to costs (see Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622).