On 6 July 2021, I made orders and directions designed to achieve the result that these proceedings would finally be determined. There are two matters that remain outstanding. The first is the determination of the final costs orders that should be made. The second involves the making of final orders concerning a freezing order that the Court has made against the plaintiffs that has been extended from time to time.
Although Judges of the Court have delivered a number of judgments in this matter, I have not. Largely as a matter of chance, it has fallen to me to deal with the costs that have been reserved in these proceedings, and to make appropriate orders to bring them to an end. Consequently, I do not have any personal familiarity with the whole of the proceedings. I have, however, made orders designed to facilitate the taking of the steps that would be necessary to bring the proceedings to a practical conclusion.
Because I lacked oversight of the proceedings, on 6 July 2021, I made a direction that the defendant's solicitor deliver to my associate an affidavit and any additional submissions for the purpose of informing the Court about the costs orders that remain to be determined, as well as any information likely to be needed by the Court to facilitate the efficient determination of the costs issues.
I also made a direction that the plaintiffs respond to the affidavit and further submissions by the defendant's solicitor, if they wished to do so.
I made an order that the Court would decide all outstanding costs issues in Chambers.
As to the freezing order, I made an order further extending that order up to 8 October 2021.
In conformity with the direction made by the Court, an affidavit of Nathan Buckley, the defendant's solicitor, sworn on 16 July 2021, was provided to my Associate. The defendant also provided written submissions on costs prepared by her counsel, as well as draft short minutes of order intended to achieve the final determination of these proceedings.
The plaintiffs have delivered to my Associate a joint affidavit affirmed by them on 23 July 2021. The plaintiffs' affidavit did little more than make unsubstantiated and inappropriate allegations concerning the conduct of the defendant's solicitor in relation to the sale of the plaintiffs' property in Victoria that had led to the Court making a freezing order against the plaintiffs.
I will now set out a brief explanation of the background to the present determination. The relevant facts are at times complex, even though many of the issues are trivial and it is difficult to understand why the proceedings were not able to be brought to finality much earlier than will be the case. The plaintiffs are almost entirely solely responsible for this dismal state of affairs. In circumstances that I will explain below, the Court on numerous occasions has tried to facilitate arrangements whereby the plaintiffs could recover the chattels that they claim to own and that they have asserted are in the possession of the defendant at her home. These arrangements have invariably miscarried, and achieved little other than delay, inconvenience and pointless legal hearings. The attempt by the Court to achieve a just outcome for the plaintiffs has descended to farcical depths, whereby the Court has been drawn into the plaintiffs' attempts to recover toilet paper and a toothbrush from the defendant's property. As far as I can tell, nothing has worked, and nothing has been resolved.
The plaintiffs are the parents of the defendant. The proceedings concerned the entitlement to a residential property in Pennant Hills. The proceedings were commenced in the Duty List on 20 June 2018. On 22 June 2018, Slattery J made orders by consent extending a caveat lodged by the plaintiffs against the title to the property of which the defendant was the registered proprietor until further order. His Honour also made orders for the matter to proceed on pleadings and case management directions.
It is not necessary to record the steps that were taken by the parties for the purpose of preparing the matter for hearing.
The matter was heard on 17 to 20 February 2020 by Parker J. His Honour published his reasons for judgment on 26 February 2020: see Wallis v Rudek [2020] NSWSC 162.
Parker J made final orders on 5 March 2020: see Wallis v Rudek (No 2) [2020] NSWSC 215. His Honour ordered the defendant to pay the plaintiffs $124,287.75 (the judgment sum) and ordered that the judgment sum be paid into court. His Honour also made a declaration that the defendant was entitled to vacant possession of the ground floor unit of the building on the property. That order was made because the plaintiffs had been living in the ground floor unit. The plaintiffs were ordered to provide vacant possession of the ground floor unit within 28 days.
Importantly for present purposes, Parker J also made the following orders:
5. Declares that the plaintiffs are the lawful owners of the chattels listed in Annexure A to the Statement of Claim (the Chattels).
6. Orders that the defendant makes the Chattels available for collection by the plaintiffs at a time during regular business hours to be notified by the plaintiffs (or through their solicitors) to the defendant's solicitors.
7. Orders the plaintiffs to remove the Chattels within 28 days from the date of these orders.
By separate order made on 5 March 2020, Parker J ordered the plaintiffs to pay the defendant's costs of the proceedings (including the cross claim) on an indemnity basis.
Annexure A to the amended statement of claim was a list of 16 chattels. It is not necessary to set out the list. It included such chattels as two lounge suites, a dining room table and eight chairs, three grandfather clocks etc. I presume that these were the chattels that were owned by the plaintiffs and used by them for the purposes of their residing at the property.
I do not know the background that led to the plaintiffs only listing the chattels in Annexure A. Superficially, it appears to be a list of the major items of furniture that the plaintiffs owned that were situated at the property.
On 27 March 2020, the plaintiffs filed a notice of motion in which they sought a stay of the orders made by Parker J pending the determination of their appeal. His Honour made an order dismissing the notice of motion on 30 March 2020: see Wallis v Rudek (No 3) [2020] NSWSC 338.
Relevantly, his Honour gave leave to the plaintiffs to make an application for an extension of the order for possession and the order for removal of the chattels.
For completeness, I will set out a brief record of the applications made to the Court of Appeal that arise out of this matter. On 6 April 2020, White JA delivered judgment on an application made by the plaintiffs on 2 April 2020 for an order staying the orders of Parker J made on 5 March 2020: see Wallis v Rudek [2020] NSWCA 61. His Honour decided that a stay of the order requiring the plaintiffs to give up possession of the ground floor unit was warranted pending the appeal. White JA observed at [39] that "if the appellants remove their goods from areas to which they make no claim, then the sources of conflict would be very much, if not entirely, removed". Relevantly for present purposes, White JA noted at [40] that the plaintiffs had offered undertakings that they would remove or cause to be removed all of their goods that were stored in the pool area or in the carport at the property within 2 to 3 weeks. On this subject, White JA had noted at [32]:
Mr Steve Rudek, another son of the respondent, gave evidence before the primary judge of aggressive behaviour by the appellant in relation to goods that the appellant had placed in an empty outside pool area. He said he was abused and was in fear of physical attack. It appears from photographs that were before me on this application that the first appellant, or perhaps both appellants, have stored a large quantity of what appears to be junk in the pool area.
White JA made a further order on 11 August 2020 discharging the stay of the order for possession that he had granted on 7 April 2020: see Wallis v Rudek (No 2) [2020] NSWCA 175.
Importantly for present purposes, his Honour made the following observations:
[34] It will be necessary for the appellants' goods to be removed, including such of their goods as remain on parts of the property other than in the ground floor unit. Ms Oliak, who appears for the appellants, rightly drew attention to the potential for further conflicts or disagreements in relation to what items are owned by the appellants and should be removed. The course which commends itself to both parties if I were to proceed, as I have now indicated I propose to proceed, is for the respondent and Mr Rudek first to prepare a list of those items on the property (other than the ground floor unit) which they say is property of the appellants or either of them, and which they require to be removed. The respondent offers to provide such a list within two business days and that timeframe should be adopted. I think however that the appellants should be provided with a further seven days in which to provide an answering list, that is to say a list which either disputes that items listed by the respondent as belonging to the appellants and are required to be removed by disputing ownership, or which asserts that other items stored on the property not included in the respondent's lists are items claimed by the appellants or either of them, and which they should be permitted to remove, or both. The list from the appellants should be served within seven days after service of the respondent's list. I will then provide a further 21 days to require the appellants to remove those items which it is common ground belong to the appellants and are stored on the property.
[35] The respondent accepts that if she identifies an item or items as belonging to the appellants which they disclaim as their property, that no further order need be made in respect of the disposal of those items. She will treat the items as abandoned and deal with them as she sees fit. As I understand it, the appellants have raised no objection to that course.
[36] If both parties claim ownership of some items, then that dispute will have to be resolved in some other proceeding.
The defendant filed a notice of motion for the issue of a writ for possession of property on 13 August 2020.
On 7 September 2020, the Court of Appeal made an order dismissing the plaintiffs' appeal and ordered the plaintiffs to pay the defendant's costs: Wallis v Rudek [2020] NSWCA 207.
On 12 November 2020, Kunc J delivered reasons for judgment in respect of a number of notices of motion filed by the parties: see Wallis v Rudek [2020] NSWSC 1618.
One notice of motion was a motion filed by the plaintiffs on 8 September 2020 seeking orders that an amount of $9,045.45 be paid out of the judgment sum to the Department of Human Services to satisfy an obligation of the second plaintiff arising out of the orders made by Parker J on 5 March 2020, and that an amount of $115,235.30 be paid out of the judgment sum to the plaintiffs' solicitors.
The defendant, by notice of motion filed on 28 September 2020, sought a number of orders including the following:
5. Declaration that all belongings and chattels remaining on the property at the date of this Order are property of the Defendant and that the Defendant is at liberty to dispose of these belongings and chattels as she sees fit.
6. Declaration that to the extent that any belongings and chattel (sic) referred to in the above order are or were previously the property of the Plaintiffs, these have been abandoned by the Plaintiffs and are the property of the Defendant.
The defendant sought an order that the judgment sum paid into court by the defendant not be released to the plaintiffs until the payments by the plaintiffs to the defendant contemplated by orders 8 to 13 of the notice of motion had been paid.
Kunc J observed at [3], prematurely as it has turned out, that "what is really being decided by the Court today are the final consequences of an unhappy dispute between" the plaintiffs and the defendant. His Honour also said at [9]: "… Ultimately, the [plaintiffs] accepted that the Court should make a decision today that would finalise the dispute".
His Honour made orders on 18 November 2020. They included an order that the plaintiffs' 8 September 2020 notice of motion be dismissed and that the plaintiffs pay the costs of the defendant on the ordinary basis. An order was made that the caveat lodged by the plaintiff be withdrawn.
Relevantly to the present application, Kunc J also made orders concerning the chattels that the plaintiffs claimed were their property, and costs. It will be appropriate to set out those orders.
First, however, it will be appropriate to set out the observations made by his Honour in relation to the issue of the chattels. His Honour said:
[15] There remains an ongoing dispute between the parties about chattels left on the Property which are said to belong to the Wallises. A suite of orders made by Parker J, and then in more detail by White JA, was designed to give the parties an opportunity to identify the Wallises' chattels and for them to be removed in a peaceable and orderly way from the Property. It is not necessary for me to set out those orders.
[16] Unfortunately, the regime prescribed by those orders broke down. Nor is it necessary for me to attribute blame in relation to that. The Wallises have since commenced proceedings in NCAT designed to recover what they say are their chattels. The present motions were fixed for a hearing time of three hours. It would be quite disproportionate on any basis, having regard to s 56 of the Civil Procedure Act 2005 (NSW), for the Court to attempt to untangle the rights and wrongs of what has happened in relation to those chattels in determining this application.
[17] Ms Rudek, through her counsel, has, with respect, entirely sensibly agreed to my suggestion that I should, by my own order, in effect "refresh" the dates in the regime provided for by White JA to give the parties one more chance to resolve the question of the chattels consensually and peacefully. That should be done on the basis that the process must be completed by Christmas. I can only urge the parties to cooperate and be sensible about this because it is quite clear that, notwithstanding relations having broken down between them, it is something which it is in their interests to resolve without further proceedings. However, if they are unable to complete the process by the application of the renewed regime, the dispute over chattels will have to be resolved in NCAT against the background of White JA's orders and the orders that I will make. Those orders provide for chattels to be deemed to have been abandoned as part of the working out of the process.
Kunc J made the following orders concerning the chattels claimed by the plaintiffs:
5. That, for the purpose of the Plaintiffs removing their personal property (the "Plaintiffs' Personal Property") from the Property:
a. the Defendant provide an itemised list (including photographs) (the "List") to the email address at [plaintiffs' email address], of all belongings, goods, possessions and chattels on the Property which the Defendant contends to be the Plaintiffs' Personal Property, by 5 pm on 23 November 2020;
b. by 5 pm on the date that is seven (7) days from the service of the List, the Plaintiffs are to provide a list in response to the List (the "List in Response") which identifies the belongings, goods, possessions and chattels that are:
i. on the List and which the Plaintiffs acknowledge are the Plaintiffs' Personal Property (the "Agreed Personal Property");
ii. on the List and which the Plaintiffs dispute are the Plaintiffs' Personal Property; and
iii. not on the List, which the Plaintiffs contend are the Plaintiffs' Personal Property (the "Additional Personal Property").
c. for the purposes of Sub-Order 5.b above, the Plaintiffs shall be provided access to the Property on 24 hours' notice; and
d. by 5 pm on the date that is seven (7) days from the service of the List in Response, the Defendant is to provide a list of the Additional Personal Property which she agrees is the Plaintiffs' Personal Property (the "Final List").
6. That, within 14 days from the date of service of the Final List, the Plaintiffs remove the Agreed Personal Property and the items on the Final List from the Property.
7. That, for the purposes of Order 6 above, the Plaintiffs shall be provided access to the Property on 24 hours' notice.
Now that the Court had finally determined that the plaintiffs were required to vacate the property, it was necessary for the claims made by the parties concerning the chattels left by the plaintiffs on the property to be dealt with. The defendant's position was that the plaintiffs had left a considerable amount of chattels on her property and the defendant wanted those chattels to be removed, whether or not the plaintiffs wished to do so. On the other hand, the plaintiffs claimed that valuable chattels of theirs remained on the property, and they wished to have the opportunity to collect those chattels. Those chattels may be more numerous than were listed in Annexure A to the amended statement of claim.
By order 9, so far as is presently material, Kunc J ordered that certain amounts be paid out to the defendant from the judgment sum in satisfaction of the plaintiffs' obligations to the defendant. The total amount that was ordered to be paid out of the $124,287.75 was $155,533.86. This left a deficit of $31,246.11. His Honour noted, in order 11, that the defendant retained all rights to recover the deficit from the plaintiffs.
The $155,533.86 included gross sum costs orders under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) as follows: $80,720.86 in respect of the costs order made by Parker J on 5 March 2020; $8,347.50 in respect of the costs orders made by Parker J on 30 March 2020; and $57,622.50 in respect of the costs orders made by the Court of Appeal.
Finally, by order 12, Kunc J ordered the plaintiffs to pay the defendant's costs of the notice of motion filed on 28 September 2020 on the ordinary basis, and gave the defendant leave to make an application for a gross sum costs order in respect of that order.
On 18 December 2020, Kunc J made a further order that the defendant was entitled to $25,597.30 as a gross sum in respect of the costs order made by his Honour on 18 November 2020: see Wallis v Rudek (No 2).
That was the last judgment delivered by the Court in this matter before the present one. The following events have occurred in this matter since the date of Kunc J's judgment.
On 8 January 2021, the matter came before Slattery J in the Vacation List in Chambers. His Honour made orders that included the following notes:
1. The Court notes that:
(a) There is a contentious dispute between the parties as to whether the parties have complied with Orders 5, 6, 7 and 14 of the orders of Kunc J dated 18 November 2020, orders which concern the possession and disposal of chattels that are claimed by both the plaintiffs and the defendant.
(b) The plaintiffs presently allege that the defendant has recently threatened that "she will start throwing out [the plaintiffs'] belongings", being the disputed chattels, from the property…an allegation that the defendant denies.
(c) It is desirable that this dispute be resolved or at least deescalated in the short term in an orderly way:
i. Without occasioning any breach of the peace that may require the involvement at the property of local police from the Ryde Police Area Command; and
ii. if reasonably possible, by not being heard in the vacation duty list, if that can be avoided, by both parties conducting themselves with restraint and avoiding unnecessary threatening or provocative conduct.
Slattery J made an order directing the plaintiffs to file and serve a notice of motion articulating any orders that they sought, as well as case management orders for the service of evidence, and made the notice of motion returnable on 21 January 2021.
The plaintiffs filed a notice of motion on 14 January 2021 seeking an order that they "receive all our goods that are throughout the house, including the lower ground floor unit, that the defendant is withholding from us and claiming it is their property, because it is their house, as opposed to what has been ordered by the court".
Also on 14 January 2021, the plaintiffs affirmed a joint affidavit in support of their notice of motion. In essence, they said that they had been unable to recover their property from the defendant, and listed in Annexure A a substantial quantity of chattels under the headings "LIST IN RESPONSE" and "ADDITIONAL PERSONAL PROPERTY". The items were listed in eight pages of single space small print. The list included "heaps of boxes; and newspapers", "toilet paper", "soap" and "toothbrushes". The list contained far more items than Annexure A to the plaintiffs' amended statement of claim.
Apparently, the plaintiffs did not serve their notice of motion in accordance with the orders made by Slattery J, as, on 21 January 2021, Lindsay J made further orders for the service of the notice of motion and the service of evidence, and made an order that the proceedings be listed before the Registrar on 16 March 2021.
The plaintiffs appear to have filed their notice of motion for a second time on 3 February 2021.
Apparently, the matter came before the Registrar on 3 March 2021, and the Registrar made no orders other than an order that the plaintiffs pay the defendant's costs of that day.
On 16 March 2021, the Registrar referred the matter to the Chief Judge in Equity for the allocation of a hearing date.
On 23 March 2021, the Chief Judge in Equity listed the plaintiffs' notice of motion filed on 3 February 2021 to be heard by me on 28 May 2021.
On 1 April 2021, the defendant was given leave by Kunc J to file in court a notice of motion that sought a freezing order against the plaintiffs. A freezing order was made by his Honour on 1 April 2021, which required the plaintiffs to inform the defendant of details concerning the impending sale of property owned by the plaintiffs in Victoria, and to pay from the proceeds of sale $40,000 to be held in the trust account of the defendant's solicitor pending further order of the Court. The freezing order has since been extended from time to time, and it remains in force.
On 4 May 2021, Mr Buckley swore an affidavit in which he explained that the plaintiffs had not provided to the defendant the information required by the order made by Kunc J on 1 April 2021.
On 28 May 2021, after a hearing, I made the following orders concerning the future of the plaintiffs' chattels:
1. Directs the defendant within 7 days by reference to Annexure A to the amended statement of claim in these proceedings (which should be annexed to the affidavit) to serve and send to the associate to Robb J an affidavit stating
a which of the items in Annexure A to her knowledge have been returned to or collected by the plaintiffs and,
b in respect of any items not collected or returned, if any, the whereabouts of those items if known by the defendant.
2. Directs the plaintiffs or either of them within a further 7 days to serve and deliver to the associate to Robb J an affidavit in response that states which of the items in Annexure A the plaintiffs accept have been collected by or returned to them and which of the items they say they still do not have.
3. Notes that the Court will decide after receipt of the affidavits whether it should decide the claim in the plaintiff's notice of motion filed on 3 March 2021 on the papers or whether it should arrange for the associate to Robb J to fix another brief hearing date suitable to the parties.
In essence, I made those orders because the protocol for identifying and facilitating the return or removal of the plaintiffs' chattels from the property in accordance with the orders made by Kunc J on 18 November 2020 had not been implemented, the entire process had broken down, and the list of chattels allegedly remaining on the property contained in the plaintiffs' 14 January 2021 affidavit was entirely outside the spirit of the orders made by Kunc J. This had the result that the dispute had become completely non-justiciable in this Court, on the basis of the issues raised by the plaintiffs' amended statement of claim. As the plaintiffs had made their choice in the proceedings to seek only the recovery of the chattels listed in Annexure A to their amended statement of claim, the only practical way forward, in order to bring the matter to a final conclusion, was to limit the plaintiffs to their pleaded claim. The only sensible resolution of the dispute was to try to ensure that the plaintiffs could remove any items of value listed in Annexure A that remained on the property, and then to make appropriate orders permitting the defendant to dispose of anything that was left, so that the defendant could be freed from the interminable dispute about what chattels of the plaintiffs remained on the property.
It was in these circumstances that I made the orders on 6 July 2021 referred to at the beginning of these reasons.
The draft short minutes of order provided to the Court by the defendant are in the following terms:
1. The Plaintiffs' Motion be dismissed.
2. The Plaintiffs pay to the Defendant:
a. on the indemnity basis, in the amount of $52,300.54:
i. the costs of the Plaintiffs' motion filed 3 February 2021;
ii. the costs of the Defendant's motion signed (sic) 31 March 2021;
iii. to the extent not covered by the above, the costs of the appearances on 1 January 2021 and 3 March 2021;
b. the balance of costs plus interest remaining to be paid as ordered by the Court on 18 December 2020 being $10,239.35;
c. being for the avoidance of doubt, a total of $62,539.89.
3. In the alternative, the Plaintiffs pay to the Defendant $57,309.84, in respect of the matters at 2(a)(i), 2(a)(ii), 2(a)(iii), and 2(b).
4. That the costs payable by the Plaintiffs to the Defendant being those arising from these orders, as well as those referred to at 2(b), may be paid from the funds held in the trust account of the solicitors for the Defendant. To the extent those funds to (sic) not satisfy the amounts payable, any extant amount payable thereafter may be recovered by the defendant from the plaintiffs.
5. If an (sic) only if the Court orders costs payable to the Defendant are less than $40,000, on and from payment of the costs contemplated in the above orders, the nett funds of the Plaintiffs' held in the Defendant's solicitor's trust account is to be distributed to the Plaintiffs.
6. On carrying into effect order 4 above the Freezing Order made by the court on 1 April 2021 and extended since that date, shall be dissolved.
7. No further motion in these proceedings is to be filed by the Plaintiffs without leave of the Court.
Disposal
8. The Defendants are at liberty to dispose of the Plaintiffs' chattels remaining at the car port to the property at [address] on and from the date 7 days from the date of these orders.
9. The Defendant's reasonable costs of disposal are to be paid out of the funds of the Plaintiff held in the Defendant's solicitor's trust account to the extent there are any such funds, and any cost of disposal not met by such funds may be recovered by the defendant from the plaintiffs.
Mr Buckley explained in his 16 July 2021 affidavit that the $10,239.35 referred to in proposed order 2(b) is the balance of $9,890.09 of the gross sum costs order of $25,597.30 made by Kunc J on 18 December 2020, after partial payment by the plaintiffs, plus interest calculated at the Court's rate of $349.26 to the date of the affidavit. Mr Buckley deposed that the amount is increasing by $1.65 per day.
Mr Buckley also explained that the defendant was seeking an order for costs in respect of the costs reserved by Slattery J on 8 January 2021, the costs reserved by Lindsay J on 21 January 2021, and the order for costs made by the Registrar against the plaintiffs on 3 March 2021. The defendant also seeks the costs of the plaintiffs' notice of motion filed on 3 February 2021 and the costs of the defendant's notice of motion seeking a freezing order filed on 1 April 2021.
Mr Buckley gave evidence, on information and belief from the defendant, concerning the plaintiffs' claims that the chattels listed in their 14 January 2021 affidavit remain on the defendant's property. The thrust of that evidence is that, whatever chattels of the plaintiffs remain on the property, they have been placed in the carport area, where they have been situated pending removal by the plaintiffs. The plaintiffs have refused to remove these chattels until the Court makes further orders. Mr Buckley deposed that the plaintiffs did not initially remove their chattels in accordance with the original orders made by Parker J. That led to the defendant filing a notice of motion in the Court of Appeal on 8 May 2020 seeking compliance. That led to the chattels being removed by the plaintiffs on 16 May 2020. On 12 August 2020, orders were made by White JA to facilitate the identification and removal of any further chattels belonging to the plaintiffs. The plaintiffs did not comply with those orders. Although the Sheriff executed a writ of possession issued by the Court on 1 October 2020, which led to the plaintiffs vacating the property, "the downstairs residence remained filled with their belongings". Mr Buckley said that the plaintiffs did not cooperate with his attempts to facilitate the removal of the plaintiffs' chattels, and they did not turn up at the agreed time for access. Notwithstanding that, on 12 November 2020, Kunc J stated to the plaintiffs at the hearing that this would be their final opportunity to remove their belongings. The plaintiffs did not comply with his Honour's orders. It is not necessary for the Court to set out the sorry story of the remainder of the attempts by the Defendant to have the chattels removed from her property. As I have explained above, I have carefully considered the detail of Mr Buckley's evidence, and I will proceed upon the basis that the evidence stands as findings of the Court.
Mr Buckley gave the following evidence in his affidavit:
16. I am instructed by the Defendant that there are no chattels on the property which relate to the items claimed in the Statement of Claim, at Annexure A to that document, consistent with the Defendant's Affidavit sworn 3 June 2021 paragraph [6]. The only belongings that do remain are the items mainly sitting in the carport which the Plaintiffs refuse to remove until order of this Court, and the Defendant is concerned that if she disposes of them, the Plaintiffs will make another application in this Court.
I am satisfied that all of the costs incurred by the defendant in these proceedings, in respect of which costs remain reserved or undecided, have been caused by the inexplicable and intractable continuing refusal by the plaintiffs to comply in a cooperative way with a series of orders made by the Court to facilitate the recovery by the plaintiffs of any valuable chattels owned by them, and the removal from the defendant's property of all chattels that the plaintiffs were not prepared to remove, or which were worthless. The Court has, on a number of occasions, extended indulgences to the plaintiffs in the form of arrangements that might permit the plaintiffs to collect from the property a more extensive range of chattels than was the subject of their pleaded claim in their amended statement of claim. All of these efforts came to naught, and were productive of wasted court time, frustration to the defendant, and unnecessary expenditure of legal costs.
Consequently, I find that the plaintiffs should be ordered to pay the defendant's costs in respect of all of the steps that have been taken to date in relation to the removal of the plaintiffs' chattels from the property owned by the defendant.
I also find that the plaintiffs should be ordered to pay the defendant's costs of the application for a freezing order. As Mr Buckley deposed to in par 13 of his 31 March 2021 affidavit, in the judgment of Parker J delivered on 26 February 2020, his Honour recorded, at [53], that the first plaintiff stated in cross-examination that he did not own any other properties, and was immediately required to recant, when shown a search that demonstrated that he owned the property in Victoria. Mr Buckley gave evidence of how he discovered that the first plaintiff had contracted to sell the Victorian property in an off-market transaction. The circumstances justified suspicion on the part of the defendant that the first plaintiff was attempting to realise the value of the Victorian property, without disclosing the sale to the defendant, or to protect the property from his trustee in bankruptcy, if he was made bankrupt as a result of bankruptcy proceedings being taken by the defendant. Mr Buckley deposed to a telephone call that he received from the first plaintiff, in which the first plaintiff said that he was not going to pay the money owed to the defendant's solicitors. Mr Buckley asked the first defendant to agree to pay the proceeds of sale of the Victorian property into his firm's trust account pending further order of the Court. The first plaintiff made no response. I am satisfied that the conduct of the plaintiffs, principally that of the first plaintiff, justified the defendant in applying for the freezing order, as the plaintiffs did not cooperate with the reasonable request made on behalf of the defendant that the value of the Victorian property be preserved, in circumstances where there were strong grounds for suspicion that the plaintiffs would hide the proceeds of sale from the defendant.
I am also satisfied that this is an appropriate case for the Court to make gross sum costs orders. The orders made by Kunc J provide a relevant precedent. I am independently satisfied that there is no likelihood that the plaintiffs would cooperate in an assessment process, and there is a real possibility that the defendant will not be able to recover any amount of costs that cannot be paid out of the money preserved by the freezing order.
I am of the view that the plaintiffs' conduct in relation to the removal of their chattels from the defendant's property has been so unreasonable as to be delinquent, so that it will be appropriate for an order to be made that the defendant's costs in respect of that issue be paid by the plaintiffs on the indemnity basis.
However, there are no grounds for ordering the plaintiffs to pay the costs of the application for a freezing order on a basis other than the ordinary basis.
I have reviewed the tax invoices next to Mr Buckley's affidavit setting out the defendant's legal costs and disbursements, including counsel's fees, and consider them to be reasonable; particularly having regard to the evidence of Mr Buckley, which I accept, that by reason of the financial circumstances of the defendant, Mr Buckley has found it necessary not to charge the defendant for a significant amount of legal work for which Mr Buckley was entitled to charge.
As the Court on a gross sum costs application will apply a broad-brush approach and discount the amount assessed to reflect the fact that the applicant for the order will be spared the costs and delay of a costs assessment, I consider that it is appropriate for the Court to make a global order in respect of the costs that have not already been determined by the Court. Having regard to the fact that the costs of the application for the freezing order will be assessed on the ordinary basis, I propose to order the plaintiffs to pay the defendant's costs of the proceedings in so far as those costs have not yet been assessed in the gross sum of $48,000. That amount will be in addition to the sum of $10,239.35 referred to in order 2(b) of the defendant's proposed short minutes of order. I will round that amount to $10,000, so that the plaintiffs will be ordered to pay the defendant $58,000. In the circumstances, I will not vary this amount to account for small amounts of interest.
I am satisfied that an order should be made that the $40,000 held by the defendant's solicitors in their trust account should be applied towards the payment of the defendant's costs.
It is appropriate for the Court to make an order that no further notice of motion be filed in these proceedings by the plaintiffs without the leave of the Court. In the interests of both the defendant and the plaintiffs, finality must be achieved in these proceedings. I do not know what effect the costs order that will now be made will have on the plaintiffs, but the Court has been told that they are pensioners with no financial reserves. It is a terrible pity that the course that the plaintiffs have fruitlessly followed in these proceedings since the delivery of the principal judgment by Parker J has had the financial consequences that are set out in these reasons.
The impasse concerning the plaintiffs' chattels on the defendant's property must end. The evidence is that they have collected whatever chattels were listed in Annexure A to their amended statement of claim that remained on the defendant's property. The plaintiffs have resisted all of the attempts made by the Court and the defendant to assist them to recover the remaining chattels that they left on the property, and to which the defendant has deposed have been placed in the carport area. It is now appropriate to make the order for the disposal of the chattels that is sought by the defendant in orders 8 of her proposed short minutes of order.
While I understand the reason why the defendant asks the Court to make order 9 in her proposed short minutes of order, I will not make that order. The defendant should dispose of the chattels that remain in the carport on her property as inexpensively as possible. The making of order 9 would simply commit the parties to legal proceedings over a relatively small amount.
The Court:
1. Orders that the plaintiffs' notice of motion filed on 3 February 2021 is dismissed.
2. Orders that the plaintiffs pay to the defendant $48,000 assessed on a gross sum basis pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) in respect of all reserved costs and costs of the proceedings not yet determined by the Court.
3. Notes that the costs order in order (2) is payable in addition to the outstanding amount that is owed by the plaintiffs to the defendant in respect of the unpaid portion of earlier costs orders made by the Court against the plaintiffs in favour of the defendant, such outstanding amount to be fixed at $10,000.
4. Notes that the costs payable by the plaintiffs to the defendant referred to in orders (2) and (3) may be paid from the funds held in the trust account of the solicitors for the defendant pursuant to the freezing order that has been made by the Court.
5. Notes that to the extent the funds held in the trust account of the solicitors for the defendant referred to in order not satisfy the amounts payable under orders (2) and (3), the balance remains recoverable by the defendant from the plaintiffs.
6. Orders that on the implementation of order (4), the Freezing Order made by the Court on 1 April 2021 and extended since that date, is dissolved.
7. Orders that no further motion in these proceedings is to be filed by the plaintiffs without leave of the Court.
8. Notes that the defendant is at liberty to dispose of the plaintiffs' chattels remaining in the carport of the property owned by her on and from the date that is seven days from the date of these orders.
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Decision last updated: 12 August 2021