Tingalpa Tyre and Mechanical Pty Ltd, the defendant, and Onza Industries Pty Ltd, the plaintiff, were in dispute about title to a property in Aberdeen, New South Wales, being section 2, DP758003 and the land contained in Certificate of Title Folio Identifier 2/2/758003 (Property).
That title dispute was litigated to finality in the Queensland Supreme Court with the outcome that the plaintiff is now the registered owner of the Property (as trustee). The defendant unsuccessfully appealed the order to the Queensland Court of Appeal and was unsuccessful in obtaining special leave to appeal to the High Court.
The current proceedings only concerned the plaintiff's 2019 application to extend a caveat, pending the outcome of the Queensland litigation. What now remains is the issue of costs of these proceedings, which were reserved pending the resolution of the Queensland litigation.
In July 2006, the defendant purchased the Property. At that time, and still today, Mr Ira Plath is the director of the defendant and has represented the defendant in these proceedings himself without legal representation.
The evidence and Court file discloses the following facts, which were not challenged by the defendant.
On 1 July 2006, the Property was vested in a trust known as the Plath Family Discretionary Trust (the Trust). The Trust was created by a deed dated 1 July 2006 between Robert Edward Ward as Settlor, the defendant as Trustee, and the defendant's brother, Ondra Zavier Plath, as Appointor.
On 4 December 2014, Ondra Plath exercised a power in the Deed of Trust to remove the defendant as trustee and appoint the plaintiff in substitution.
On 25 July 2015, the plaintiff notified the defendant of the change of trustee and sought the certificate of title for the Property so the change of trustee could be recorded. The defendant did not provide the certificate of title.
On 27 April 2016, the plaintiff registered a caveat on the title. The particulars of the estate or interest claimed were:
Entitlement to the legal interest in the land as trustee, under appointment of trustee, dated 4th December 2014.
The facts said to support that interest were identified as:
… on 4/12/2014 Tingalpa Tyre and Mechanical Pty Limited was removed as trustee of the Plath Discretionary Trust and in its place, Onza Industries Pty Limited was appointed as the new Trustee of the Plath Discretionary Trust.
Later that year, the plaintiff commenced the Queensland litigation seeking a declaration of ownership of the Property.
On 8 January 2019, the defendant issued a lapsing notice to the plaintiff.
On 22 January 2019, these proceedings were commenced by the plaintiff seeking an extension of the caveat.
At the hearing on 22 January 2019 there was no appearance for the defendant. The Court ordered that the caveat be extended until further order of the Court and the question of costs was reserved. However, the Court also ordered:
3. Reserve to the defendant liberty to apply for [the order extending the caveat] to be discharged or varied.
4. Order that on any such application made by the defendant pursuant to that grant of leave, the plaintiff bear the onus of persuading the court that [the caveat] should continue in operation.
5. Note that the plaintiff's claim to an estate or interest in the land the subject of [the caveat] is presently the subject of proceedings [in the Supreme Court of Queensland].
6. Order that the plaintiff serve a copy of the orders on the defendant no later than 25 January 2019 by:
(a) Service of a copy of the orders on the registered office of the defendant; and
(b) Dispatch of an email… addressed to Ira Plath at [email address].
No issue has been raised by the defendant that it did not receive those orders as was contemplated by the Court. I note that the email identified in order 6(b) is the same email that Mr Ira Plath continues to use when communicating with the Court. At no time did the defendant seek to clarify the meaning of the liberty or exercise the liberty to apply to vary or discharge those orders.
The matter was stood over in this Court on various occasions until the completion of the Queensland litigation.
On 7 January 2021, the Supreme Court of Queensland made an order vesting the land in the plaintiff. That decision has not been overturned.
Thereafter, the plaintiff has transferred the title of the Property into its name and the caveat became redundant.
The parties were ordered to provide written submissions on the question of costs. After agreeing that the issue ought to be determined on the papers, Mr Plath, contacted chambers and sought an oral hearing in this way:
Disregard what I agreed to in court this morning as I think that it is my best interest to listen to what Justice Peden has to say for it would be better for me argue my point for Justice Peden does not know the history behind all the Lies, I am asking for a Court date to appear in person in Sydney to argue my case as Justice Peden will notibly [sic] order against me.
As a matter of fairness, that request for an oral hearing was acceded to, despite the previous consent position.
At the oral hearing I explained to Mr Plath that the only issue I was going to determine was the reserved costs of these proceedings, which had only concerned the plaintiff's application to extend the caveat pending the Queensland litigation being finalised, and that I had not pre-determined the matter. I indicated that I would only have regard to the material the parties had brought before me on the issue of costs, and not any material in the Queensland litigation. Mr Plath accepted that I did not have jurisdiction to revisit the previous decisions made in the Queensland litigation. Notwithstanding that acceptance, Mr Plath did orally address the Court in detail concerning the Queensland litigation on the basis that it elucidated the type of person the plaintiff was and that he perceived a costs order would be unfair.
Mr Plath also provided a copy of the Queensland Supreme Court's decision at first instance, which I took as background information only.
At the oral hearing, Mr Plath made submissions in addition to the written submissions, as outlined below.
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Parties' positions
The plaintiff submitted the defendant ought to pay its costs on an indemnity basis because:
1. Costs ought to follow the event; and
2. The defendant demonstrated "delinquency" in issuing the lapsing notice when the Queensland proceedings were already on foot, referencing Oshlack v Richmond River Council (1998) 193 CLR 72 at [44] (Gaudron and Gummow JJ) and Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at [401] (Woodward J).
The plaintiff also submitted that those costs ought to be paid personally by Mr Plath because:
1. He is the alter ego of the defendant.
2. He has informed the Court on 3 October 2022 that he could not afford a solicitor or barrister, from which it ought to be inferred that the defendant has no financial resources for a costs order.
3. The conduct of the defendant was unreasonable.
Mr Plath's written submissions included the following, and much was repeated in similar terms orally:
1. He remains aggrieved by the vesting order made by the Queensland Supreme Court, which he considered was the result of "hearsay, no evidence" and "lies and innuendo".
2. He suggested that if the Court made a costs order against him, it would be "ruling against the truth". This was said to be the case because "avenues of investigation" had not been explored such that there remained a "HUGE GREY AREA on TRUTH & FAIRNESS (THE SCALES)" and no proof in the plaintiff's claims. It is not clear what Mr Plath meant by those "avenues of investigation" and, equally, his concerns about issues of proof would not arise on this costs application.
3. Mr Plath also submitted that the costs should be borne by the plaintiff in circumstances where the plaintiff and plaintiff's solicitors had instigated the caveat and he had already paid his "costs" in the sense that the proceedings had had a negative impact on his fishing business, the loss of his investment "to the shed of 16 years", as well as "mental capacity, sleep deprivation, mental anguish". In his words:
Lewis NcNamara Solicitors (LMS) are seeking ORDERS for My Company & Myself to pay costs, LMS & my Brother instigated this, they placed the CAVEAT at their costs, they pay & all the other cost affiliated with the court, MY COSTS have been my 7 seven years of my Fishing Business, the Loss of my Investment to the shed of 16 years of Compounding Interest, Mental Capacity, Sleep Deprivation, Mental Anguish.
and
I might be BEATEN UP but not BEATEN. I am not finished with having the TRUTH & all the LIES put before a JUDGE, I refuse to accept any COSTS for what I know about this CASE & the TRIAL CASE. JUDGES seem to protect the LEGAL FRATERNITY …
Orally, Mr Plath submitted that he did not understand how the plaintiff was able to register a caveat in circumstances where he did not owe the plaintiff any money and when it was lodged prior to the Queensland litigation. I explained to Mr Plath that a caveat was notice to the world that a person claimed a proprietary interest in the particular land, but its lodgement did not, and could not, finally determine that they did in fact have such an interest. He did not make any further submissions about that issue but provided a detailed explanation of his view that the plaintiff had misled the Queensland Supreme Court and his version should have been preferred.
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Determination
The principles concerning costs are well known; the Court has a discretion as to costs pursuant to s 98(1) Civil Procedure Act 2005 (NSW), and usually costs will follow the event: r 42.1 UCPR; see also a summary of principles in Abdi v Abdi (No 2) [2022] NSWSC 582 at [19]-[21] (Ward P).
In exercising my discretion, I am conscious that Mr Plath is a litigant in person in these proceedings and has also been a litigant in person in the entirety of the Queensland proceedings, save for his appeal in the Queensland Court of Appeal in which he was represented by counsel acting pro bono: Tingalpa Tyre & Mechanical Pty Ltd v Onza Industries Pty Ltd [2021] QCA 252.
In Cachia v Hanes (1994) 179 CLR 403, the High Court (Mason CJ, Brennan, Deane, Dawson and McHugh JJ) observed (citations omitted):
Whilst the right of a litigant to appear in person is fundamental, it would be disregarding the obvious to fail to recognise that the presence of litigants in person in increasing numbers is creating a problem for the courts. It would be mere pretence It would be mere pretence to regard the work done by most litigants in person in the preparation and conduct of their cases as the equivalent of work done by qualified legal representatives. All too frequently, the burden of ensuring that the necessary work of a litigant in person is done falls on the court administration or the court itself. Even so, litigation involving a litigant in person is usually less efficiently conducted and tends to be prolonged. The costs of legal representation for the opposing litigant are increased and the drain upon court resources is considerable.
I accept here that the event was the plaintiff's successful outcome in the Queensland litigation in obtaining a declaration of title to the Property, which the plaintiff had sought to protect by the caveat.
Therefore, it is appropriate that the defendant pay the plaintiff's costs of these proceedings.
I consider it is appropriate for the defendant to pay the plaintiff's costs on an indemnity basis for the following reasons:
1. Properly advised, the defendant ought not have issued the lapsing notice when the substantive Queensland litigation was on foot and the defendant had the opportunity to agitate there that the plaintiff had no interest in the Property, and therefore no right to a caveat. The defendant's rights were protected in the Queensland litigation and there was no advantage in issuing the lapsing notice when ownership of the land was a matter in dispute, yet to be determined.
2. Mr Plath's submissions challenging the correctness of the Queensland Supreme Court's decision are not relevant to the issue here. The defendant has challenged the plaintiff's claim to the title of the Property in three courts and failed. I have no jurisdiction to review those decisions.
3. Mr Plath's submissions based on the hardship he has experienced in challenging the rulings in the Queensland courts certainly evokes sympathy on a human level, but they are not matters that can legally be taken into account on the question of costs of these proceedings.
I will order that the costs are to be "agreed or assessed". If they are assessed, it may be that a costs assessor does not accept that it was necessary for the plaintiff to incur all the costs sought. I note that the plaintiff's evidence was two relatively short affidavits attaching documents.
The authorities indicate that the Court's discretion to make a costs order against a non-party is only to be exercised in exceptional circumstances: Ian Huntly Philip v JPM Developments Pty Ltd [2015] NSWSC 495 at [23]-[24] (Sackar J) and the authorities cited therein. While Mr Plath stated in his submissions that "he" does not have funds for legal representation, there is no evidence before me about the financial state of the defendant and whether it has capacity to pay costs. I also have no evidence as to the likely quantum of those costs.
I do not accept that the defendant's costs ought to be paid personally by Mr Plath.
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Order
Therefore, the Court orders the defendant to pay the plaintiff's costs on an indemnity basis as agreed or assessed.
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Decision last updated: 08 December 2022
Parties
Applicant/Plaintiff:
Onza Industries Pty Ltd as Trustee for the Plath Family Discretionary Trust