Nerez Grant v Gwendoline Peggy Hall

EX TEMPORE Judgment 1HIS HONOUR: These proceedings were commenced by summons filed on 6 February 2012. In June 2012 Nicholas J heard an application by the first defendant for security for costs in the inherent jurisdiction of the Court against the plaintiff (Grant v Hall [2012] NSWSC 779). His Honour dismissed the first defendant's application with costs. 2His Honour, with respect, in paragraphs [2]-[11] succinctly sets out the background and general nature of these proceedings. These reasons should be read in conjunction with those paragraphs to which I have just referred. 3The matter has not proceeded in an entirely satisfactory fashion. In particular, the plaintiff has failed to comply with a number of directions and there have already been several orders made for costs in favour of the first defendant in relation to those non-compliances. To cut a long story short, on 30 April 2013 the proceedings were listed for hearing before me commencing today with an estimate of three days. 4The plaintiff had legal representation at the commencement of these proceedings. Her first solicitor filed a notice of ceasing to act on 24 September 2012. She then continued unrepresented until a further solicitor came onto the record by notice of appointment of solicitor filed on 21 March 2013. However, that solicitor's involvement in the proceedings was short-lived. He filed a notice of ceasing to act on 23 April 2013. Thereafter the plaintiff has continued the proceedings without legal representation. 5When the matter was called on for hearing before me, the plaintiff applied for an adjournment of the hearing. She did so on the basis that her own poor health in recent weeks and an obligation to care for her elderly father had prevented her from giving proper attention to either continuing to prepare the case herself or to take proper steps to obtain fresh legal representation. She informed the Court from the bar table that as late as last week she had approached a member of the Bar who had indicated that he would appear for her, but only in circumstances where he would be instructed by solicitors with real property expertise. I interpose that these proceedings, as is apparent from the summary of the nature of the issues to which I have referred set out in Nicholas J's judgment, will involve careful attention to provisions of the Conveyancing Act, the Crown Lands Act and the Real Property Act. 6The plaintiff informed me that she was not in a position to run the proceedings herself. However, she was confident that she would be able to obtain legal representation, including the counsel with whom she has apparently had some communication in the last few days. In those circumstances, over the objection of the first and second defendants, she pressed for an adjournment. 7Having heard the submissions of the defendants, I came to the view that in all the circumstances it was appropriate for the plaintiff to be granted the very significant indulgence of an adjournment. I took into account the fact that, as far as the Court was concerned, it was entirely unsatisfactory for her to have gone for some three or four months knowing that she would require legal representation at this hearing and to have done little or nothing during that period to obtain it. The first time she notified anybody of her intention to apply for an adjournment was at this morning's hearing. The defendants came ready to argue the case, including having made available witnesses for cross-examination in anticipation of the plaintiff appearing for herself and wishing to cross-examine those witnesses herself. 8Despite what I regard as the plaintiff's very unsatisfactory conduct in relation to the preparation of this matter, two considerations in particular have moved me to uphold her application for an adjournment, albeit on stringent terms including the provision of security for costs past and future. 9The first of these was that the highly technical nature of many of the aspects of her case led me to the conclusion that, in her own interests and for the purposes of the Court being best assisted, if she was able to obtain legal representation she should be given the opportunity to do so. 10Second, if the case were to be conducted by the plaintiff in person, there was every prospect that it would not conclude in the three days allocated and would have to go over for many months. 11With considerable reluctance I have therefore agreed to accede to the plaintiff's application. However, in order to do justice to the defendants and having regard to the plaintiff's dilatory conduct on earlier occasions, I indicated to the parties that I would only grant the adjournment upon terms that the plaintiff provide security for the first and second defendants' costs of the proceedings to date and of a future hearing, should a hearing ever eventuate. To that end I received both formal and informal evidence from the defendants of the costs which they had incurred to date and which they anticipate they will incur in preparation for a three day hearing if the plaintiff is able provide the security which I will shortly order. 12The determination of appropriate amounts for security for costs at any time, but particularly in the circumstances of the matter being dealt with with some degree of informality as has occurred today, is more an art than a science. Security for costs is not granted to provide a complete indemnity but is ordered to provide the beneficiaries of such an order with some degree of protection. In this case the circumstances leading to the adjournment, the plaintiff's dilatory conduct of the proceedings to date, as well as a very preliminary view that I have formed as to the difficulties in the way of the plaintiff succeeding at trial, justify such an order being made in the exercise of the inherent jurisdiction of the Court as a condition of granting the adjournment. 13I will set out in very broad terms how I have arrived at the figures which I propose to order for security. There has at every turn been a degree of rounding and allowances in both directions to arrive at these figures. Nevertheless, I will expose my reasoning at least to ensure that no significant component has been overlooked. 14Two preliminary matters need to be noted. The plaintiff is herself the beneficiary of a costs order against the first defendant arising from the dismissal of the first defendant's earlier motion for security against the plaintiff. The plaintiff has informed me from the bar table that her costs of that application were in the order of $60,000. Having regard to what I understand to be the usual principles of assessment that might be brought to bear, for the purposes of these present calculations I am allowing a credit in favour of the plaintiff in the sum of $40,000 for those costs. Nor should any security the plaintiff is to provide extend to the first defendant's own costs of her unsuccessful motion. 15However, on the other hand, the first defendant is the beneficiary of a number of orders for costs in her favour. Those costs orders I am informed are all on the ordinary basis. I am further informed by counsel for the first defendant that an offer was made in relation to those costs orders by the first defendant to the plaintiff to accept a figure of approximately $20,000 in relation to those costs orders. 16For the purposes of the calculations that I have made, I have allowed a figure of $20,000 in favour of the first defendant. However, that is not going to feature significantly because in the final figure I have allowed for security in favour of the first defendant, I have intended to include an amount representing the likely value of the costs orders which the first defendant already has. If security is provided, I will make it clear that part of that security will be able to be accessed by the first defendant in immediate satisfaction of the costs orders in its favour to date, upon those costs orders being assessed forthwith or their amount otherwise being agreed. 17Turning to the position of the first defendant, I have been informed that the costs to date of the first defendant on a solicitor client basis are approximately $150,000 billed and approximately $11,400 in work in progress. From that needs to be deducted an amount for the costs which the first defendant incurred in its unsuccessful prosecution of its earlier security for costs motion. Those costs both actual and predicted were set out in an affidavit filed by the first defendant's solicitor and, doing the best I can, I have deducted solicitor client costs of $32,000 in relation to the unsuccessful security for costs motion. 18Very roughly, in relation to the costs that have been incurred to date, I have then made a thirty percent allowance for deductions on assessment to yield a figure of $90,000. 19I am informed that counsel's fees to date are approximately $25,000. Again, some of those fees will be referable to the unsuccessful security for costs motion. These were estimated in the first defendant's solicitors earlier affidavit at $10,000. Accordingly, for present purposes, I have allowed counsel's fees in relation to the proceedings to date at a figure of $15,000. 20This gives a total figure of $105,000 from which the figure of $40,000 needs to be deducted in relation to the costs which the first defendant owes the plaintiff from the earlier motion. Therefore, I have allowed a figure of $65,000 inclusive of GST for an amount for security of the first defendant's costs to date. 21Turning to a figure for future costs, I have been informed that the preparation and conduct of a three day hearing is estimated at $24,500 in solicitors' fees, which I have again allowed at seventy percent of that figure, namely rounded to $17,000. Counsel's fees have been estimated at $15,400 which I essentially intend to allow in full. Rounding again for convenience, I have therefore allowed $32,000 in relation to the first defendant's costs going forward. Allowing for GST and other contingencies I have arrived at a final figure of security for the first defendant for its costs to date and into the future of $110,000 inclusive of GST. 22On the basis of the information provided to me by counsel for the second defendant, I have done a similar exercise. I was informed that costs billed to date are approximately $32,000 with $7,000 of counsel's fees. Costs in relation to the preparation of the present hearing were put to me as approximately $20,000. Costs of a further hearing on a rolled up basis for solicitor and counsel were estimated as approximately $16,000. Doing the best I can and making appropriate allowances for deduction on taxation, I have arrived at figure of $60,000 inclusive of GST for the purposes of the provision of security in respect of the second defendant's costs to date and of a further hearing. 23Another issue which was ventilated before me was a concern raised as to whether the plaintiff would seek to renew an application for leave to file expert evidence. On an earlier occasion when the plaintiff was legally represented she agreed to have her motion for leave to file such evidence dismissed. As it happened, that matter was before me in the Applications List in April and in accordance with consent orders that were provided to me on that occasion, I dismissed her motion for leave to file expert evidence. 24I have again raised the matter with the plaintiff today. After consideration she has informed the Court and the defendants that she will not be relying on her foreshadowed expert evidence. Given the history of the matter to date and notwithstanding the assurance which the plaintiff has given, I will also make a direction today that she not be entitled to file any further evidence without the leave of the Court. 25The plaintiff has informed me that she expects to be able to provide the security within six weeks. Because of the advanced age and circumstances of the first defendant I am mindful of the fact that any delay occasioned by this adjournment and a possible later hearing should be kept to a minimum. For this reason, I will bring the matter back very promptly after the six weeks has expired for one of two reasons. If the plaintiff is able to provide the security which I am about to order, then on that occasion I will make such further directions as are required for the matter to go to hearing. 26If, however, the plaintiff has not been able to provide the security by that date, then I will entertain such applications as the defendants may be advised to make against the plaintiff, including for judgment in favour of the first defendant for possession of the land which is in part the subject of these proceedings. I would intend, if at all possible, to deal with any such applications on the return date that I propose to appoint for the matter and the plaintiff should regard herself on notice as having to be prepared to deal with any applications on that day. Having said that, I will direct the defendants to give some reasonable notice to the plaintiff of the precise nature of any applications they might wish to bring in anticipation of the plaintiff being unable to provide security in accordance with the order that I am about to make. 27I wish to make it clear to the plaintiff that she has been granted a very substantial indulgence. In the absence of extraordinary circumstances, she should not expect any further such indulgence to be granted by the Court. In particular, if the plaintiff genuinely believes she is able to obtain further legal representation and intends to do so, then the Court expects her to undertake that task with expedition and diligence so that, if she is able to provide the security in accordance with my orders, the Court and the other parties can be satisfied that the matter will go to hearing in an orderly fashion. 28The Court's orders are as follows: (1)In relation to all costs orders made to date in favour of the first defendant, I grant leave to the first defendant for those costs to be assessed and payable forthwith (the "forthwith costs"). (2)On or before 8 October 2013 the plaintiff is to provide security for costs in a form satisfactory to the first and second defendants or otherwise in a form satisfactory to the Registrar as follows: (a)$110,000 inclusive of GST in relation to the first defendant's costs to date and future costs. (b)$60,000 inclusive of GST in relation to the second defendant's costs to date and future costs. (3)Direct that upon assessment or agreement of the forthwith costs, the first defendant be entitled to draw upon the security referred to in order 2(a) to satisfy those costs orders. (4)Direct that the plaintiff is not entitled to file any further evidence without leave of the Court. (5)Stay the plaintiff's amended statement of claim until security is provided in accordance with order 2 or further order of the Court. (6)Direct the defendants to give at least seven days notice to the plaintiff of any application that they propose to make on the return date of these proceedings, in particular if the plaintiff has been unable to provide the security ordered above. (7)Adjourn these proceedings to before me on 14 October 2013 at 10.00am for the purpose of either making directions in anticipation of a hearing or to deal with such applications as the defendants may wish to make. (8)Order that the plaintiff pay the defendants' costs of today and costs thrown away by reason of the adjournment.