New Start Property Group Pty Ltd v Norman Stanley Hayde

Judgment

1. The only issue remaining in these proceedings is costs. By Summons filed on 2 November 2016 and Statement of Claim filed on 9 February 2017 the plaintiff sought declarations that on 3 December 2015 it had validly terminated a contract for the sale of land in Port Macquarie. The plaintiff also sought orders that the deposit of $29,976.00 paid by the first defendant purchaser pursuant to the contract be forfeited and released to the plaintiff by the second defendant, which held the deposit as stakeholder. There was also a claim for damages.
2. By Cross-Claim filed 10 April 2017 the first defendant sought a declaration that it had validly rescinded the contract for sale on 15 June 2015, and an order that the deposit be returned.
3. The second defendant filed a Submitting Appearance on 4 November 2016.
4. On 7 September 2017 the plaintiff made an Offer of Compromise to the first defendant in the following terms: The plaintiff offers to compromise the whole of the plaintiff's claim against the first defendant by consenting to judgment for the plaintiff against the first defendant in the form of an order requiring the second defendant to release the deposit of $29,976 to the plaintiff. This offer does not include an amount for costs. This offer is open for acceptance for a period of 28 days from the date of receipt of this offer. This offer is made in accordance with Rule 20.26 of the Uniform Civil Procedure Rules 2005.
5. On 15 September 2017 the first defendant's solicitors replied by email in the following terms: We refer to your letter dated 7 September 2017 which enclosed an offer to settle on behalf of your client. We are instructed that our client accepts your client's offer to settle on the terms contained therein. Can you please prepare draft consent orders for our execution in anticipation of next Friday's directions hearing?
6. On 21 September 2017 the first defendant's solicitors sent a letter to the plaintiff which stated: As discussed earlier in the week, we wanted to confirm that we are no longer retained to act on behalf of Norman Hayde in these proceedings. Our counsel will be appearing tomorrow morning at the directions hearing to assist the Court. We just want to reiterate to you and your client that Norm is currently extremely unwell. We understand that he is presently incapacitated and bedridden, which has been the case for over two months. Aside from having no assets, he has no capability to manage his affairs, including this matter. We attach a copy of his most recent medical certificate. As a result of his health, we have not spoken to him, but have only had general discussions about the case with his wife. It has occurred to us that she hasn't been formally appointed as Norman's tutor for the purposes of the proceedings to provide instructions on Norm's behalf. We raise this simply to note that you will not be able to take steps against Norman to obtain a judgment when he is incapacitated, apart from seeking leave to have a tutor appointed: see 7.14 and 7.18 of the UCPR.