Widjaja v Noto

Judgment

1. These proceedings, which were largely resolved by Consent Orders entered on 17 March 2022, concerned an application brought by the plaintiff (Ms Widjaja) for the imposition of a statutory trust for the sale of certain co-owned land situated on Brenan Street, Smithfield, pursuant to s 66G(1) of the Conveyancing Act 1919 (NSW). Ms Widjaja owned a half-interest in that property, as a tenant in common in unequal shares with the first defendant (Mr Vincenzo Noto), second defendant (Mr Giuseppe Noto) and third defendant (Ms Graziella Granata) - her step-children - each of whom owned a one-sixth interest in the property.
2. In accordance with the Consent Orders entered on 17 March 2022: trustees for the sale of the Smithfield property were appointed; the sale was conducted; and the proceeds thereof, totalling around $757,468.53, have since been proportionately distributed to the parties.
3. Regrettably, Ms Widjaja and Mr Vincenzo Noto are in dispute as to who should bear the parties' costs incurred to date. Mr Giuseppe Noto and Ms Granata, consistently with their general approach to this litigation, have not sought to involve themselves in this outstanding controversy between their step-mother and their brother.
4. In my opinion, having considered the submissions provided by the plaintiff (dated 14 September 2022, and 21 October 2022 in reply) and the first defendant (dated 15 October 2022), and for the reasons I now provide, there ought to be no order as to costs, in relation to both the substantive s 66G proceedings and this costs application brought by the plaintiff.
5. As against Mr Vincenzo Noto, Ms Widjaja submits that she should receive her costs of the proceedings on any or all of the following bases, namely: 1. that the eventual sale of the Smithfield property by the statutory trustees is such as to render her the "successful party", with the result that the Court's discretion as to costs ought to be guided by the ordinary position that costs follow the event (see Uniform Civil Procedure Rules 2005 (NSW) r 42.1; Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [25] per Kiefel CJ, Bell, Gageler, Keane and Nettle JJ); 2. that she acted reasonably in seeking the first defendant's agreement "in relation to the inevitable sale" of the Smithfield property, and that her costs in that regard were "brought about by reason of the first defendant's conduct"; and 3. that the first defendant acted unreasonably in the proceedings by ignoring "costs warnings" issued by her solicitors, and failing initially "to engage in correspondence and this litigation" (cf Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 at [8] per Basten JA).