Livio Versi & Ors v John Versi

The Court has before it a notice of motion filed on 15 May 2015 by Mohammad Ahmed Rashed. Mr Rashed is the trustee for sale of a property at Carramar (the property).

Mr Rashed was appointed trustee for sale by an order made by Justice Pembroke on 4 July 2014 under s 66G of the Conveyancing Act, 1919 (NSW) on the application of the defendant’s three siblings. Without disrespect, I shall refer to the defendant, Mr John Versi, by his given name.

John and his three siblings are the owners of the property.

Mr Rashed had made attempts to sell the property but they have been thwarted by John, who continues to reside at the property. Numerous attempts were made by other family members to persuade John to leave the property to enable it to be sold.

Among the evidence read today is an affidavit of service of John Vitanza, a licensed commercial agent. Mr Vitanza deposes to serving a number of documents on John, including a letter to him from Kendal Legal of 9 April 2015. John denies receiving this material. However, I accept Mr Vitanza's evidence that it was served on John.

The letter from Kendal Legal, after setting out the history of the dispute between the parties, concludes:

John did not vacate the property and Mr Rashed brought the threatened proceedings seeking an order for possession by the notice of motion now before the Court.

When the present motion came before Justice Hallen sitting as duty judge, his Honour made orders which included the following notations:

His Honour brought about a situation where the parties came to an agreement as to how the value of the property was to be determined. Unfortunately, those arrangements broke down. That is why the matter has returned to the duty list.

Today Mr Rashed has been represented by Mr M Klooster of Counsel. John appeared for himself.

The parties have agreed a series of orders which have been designed to ensure that John will co-operate in the auction of the property and vacate it either within four weeks after an exchange of contracts for sale of the property or a date being twelve weeks from the date of these orders. John has given certain undertakings to the Court whereby he will not inhibit the marketing or sale of the property.

Mr Rashed has pressed for orders that John pay the costs associated with this application on the indemnity basis. John opposes those orders.

The notice of motion which is moved on expressly claims costs on the indemnity basis. John has told me that he did not receive the letter from Kendal Legal and the other documents which Mr Vitanza deposes he served on John (see paragraph [5] above). I do not accept that John did not have notice of that material.

The general rule is that costs follow the event, but on the ordinary basis. Indemnity costs are not awarded as a form of punishment. However, they are awarded where, for example, the party against whom the orders are sought has behaved unreasonably or has maintained a hopeless position in connection with the proceedings.

The Court is satisfied that John was put on notice that if he did not vacate the property, proceedings would be brought for an order for possession. While the Kendal Legal letter does not refer to costs on the indemnity basis, the motion does. Therefore, John was on notice that if he disputed the motion, he was at risk of an order for indemnity costs.

In the Court's view John has persisted, albeit perhaps out of ignorance, with a position that was hopeless. The evidence discloses that he has behaved unreasonably in maintaining his resistance to vacating the property. In those circumstances the Court is satisfied that an order should be made that he pay the costs of this application on the indemnity basis and that those costs be paid out of what would otherwise be his share of the sale proceeds of the property.

Accordingly, I make orders in accordance with the document entitled "short minutes of order" which I will initial, date today and place with the papers.