Desane Properties Pty Limited v State of New South Wales [No2]

HIS HONOUR: On 1 May 2018, I gave the principal judgment in this case: Desane Properties Pty Limited v State of New South Wales [2018] NSWSC 553. Defined terms in the principal judgment are used here. Desane succeeded. The Court determined that the PAN is of no statutory effect.

Desane has proposed a form of final orders, which includes orders that RMS pay the costs of the proceedings as between it and RMS, and for the payment of interest on costs. The claim for interest is supported by an affidavit of a solicitor, parts of which were objected to on form grounds, and rejected.

The proposed orders include an uncontentious form of declaration that the PAN is invalid and of no statutory effect, and an uncontentious order that RMS lodge with the Registrar-General a request to remove the land dealing registered on the title of the Property as a consequence of the PAN.

Desane seeks, in addition, and RMS opposes, an order quashing the PAN and an injunction restraining RMS from acting on the PAN or taking any step in reliance upon, or giving effect to, it.

RMS argues that Desane should not have all of its costs because Desane’s claim for misleading or deceptive conduct failed. RMS puts that Desane should only have 60 per cent of its costs.

I received written submissions from Desane and RMS, and I heard oral submissions from counsel. I do not propose to make orders quashing the PAN or granting any injunction. In the particular circumstances of this case, such orders are surplusage. The PAN will be declared to be of no statutory effect and the Registrar-General will be requested to remove the land dealing. I do not consider there to be any realistic risk that RMS, which has the status, privileges and immunities of the Crown and which may be expected to act as a model litigant will, in the face of the orders of this Court, act on the PAN or take any steps which assume its validity. A declaration will suffice.

In my view, nothing in this case warrants an exercise of discretion so as to depart from the ordinary rule that costs should follow the event or from the usual position that, unless there is good reason to do so, the Court will not embark upon the exercise of apportioning costs between issues. To the contrary, there is every good reason why Desane should have all its costs. The general sub-stratum of fact with which the Court had to deal, straddles both the improper purpose case and the misleading or deceptive conduct case.

The misleading or deceptive conduct case was not unreasonably brought. That, in the end, relief would not have been granted on that cause of action, as opposed to another cause of action covering the same general sub-stratum of fact, is not a reason to depart from the usual position. Even less is it appropriate to embark on a dissection of the misleading or deceptive conduct count into ‘carrying on business’ and relief subcategories of that cause of action.

It is also appropriate for there to be an order that Desane receive interest on its costs as paid during the course of this lengthy litigation.

The Court:

These orders dispose of these proceedings.