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Pololi v Wyborn [2013] PGNC 144; N5395 (30 July 2013)

N5395

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS 474 OF 2012

BETWEEN:

JULIUS POLOLI – ACTING PUBLIC CURATOR
as the Administrator and Trustee of the Deceased
Estate of Late Thomas Arthur Wyborn
Plaintiff

AND:

BRYAN JAMES WYBORN
First Defendant

AND:

NORMAN CARL MAY
Second Defendant

AND:

MY HOME DEVELOPMENT LIMITED
Third Defendant

AND:

PNG SUSTAINABLE DEVELOPMENT
PROGRAM LIMITED
Fourth Defendant

AND:

RUPERT TABUA
Fifth Defendant

AND:

ROMLEY KILA PAT – DEPUTY SECRETARY
LANDS DEPARTMENT
Sixth Defendant

AND:

JOHN OFOI – ACTING SECRETARY FOR LANDS
Seventh Defendant

AND:

HENRY WASA – REGISTRAR OF TITLES
Eighth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Ninth Defendant

Waigani: Hartshorn J.
2013: 19th February,
: 30th July

COSTS – whether an award is able to be made against a non party

Cases cited:

Papua New Guinea Cases

Thiess Bros. (Pacific) Pty Ltd v. Chief Collector of Taxes [1982] 385
Polye v. Papaki [2000] PNGLR 166
PNG Waterboard v. Gabriel Kama (2005) SC821
Umboi Timbers Investment Ltd v. Precision Logging Ltd (2008) N3346
Island Helicopter Services Limited v. Wilson Sagati (2008) N3340
PNG Aviation Services Pty Ltd v. Karri (2009) SC1002
PNG Ports Corporation Ltd v. Canopus No 71 Ltd (2010) N4288
Patrick v. Kimas (2010) N3913
Rex Paki v. Motor Vehicle Insurance Ltd (2010) SC1015
ToRobert v. ToRobert (2012) SC1198

Overseas Cases

Aiden Shipping Co Ltd v. Interbulk Ltd [1986] 1 AC 965
Adsett v. Berlouis [1992] FCA 368; (1992) 109 ALR 100
Arena Management Pty Ltd v. Campbell Street Theatre Pty Ltd (No 2) [2010] NSWSC 123
Arena Management Pty Ltd (Receiver & Manager Appointed) v. Campbell Street Theatre Pty Ltd [2011] NSWCA 128
Carborundum Abrasives Ltd v. Bank of New Zealand (No 2) [1992] 3NZLR 757
Dymocks Franchise Systems (NSW) Pty Ltd v. Todd & Ors (No 2) (New Zealand) [2004] UKPC 39
FPM Constructions v. Council of the City of Blue Mountains [2005] NSWCA 340
Goodwood Recoveries Ltd v. Breen [2005] EWCA Civ 414
Knight v. FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178
May v. Christodoulou [2011] NSWCA 75
Mead v. Watson [2005] NSWCA 133
Sims v. Hawkins [2007] EWCA Civ 1175

Counsel:

Ms. Twivey, for the Plaintiff
Mr. I. R. Molloy and Mr. G. Gileng, for the First, Second and Third Defendants
Mr. M. Mukwesipu, for the Fourth Defendant

30th July 2013

1. HARTSHORN J. On 21st January 2013, I amongst others, dismissed the claims of the plaintiff and reserved the question of costs for further submissions and determination. On 19th February 2013 I heard counsel on the question of costs and reserved my decision. I now deliver my decision.

2. The first, second and third defendants' submit that costs should follow the event, and should be awarded against the plaintiff and his agents Mr. Samson Jubi and Mr. Allan Baniyamai personally on an indemnity basis.

3. The fourth defendant submits that costs should follow the event, should be awarded on an indemnity basis against either Mr. Samson Jubi personally or Mr. Julius Pololi and/or the Public Curator of Papua and New Guinea and/or Mr. Jubi.

4. The plaintiff submits that as the costs orders are sought against non parties, those non parties need to have been served but they have not been. In addition, an application for indemnity costs needs to be moved by notice of motion but it has not been, therefore the application for costs by the defendants' should fail. Further, in any event, costs should follow the event and be awarded on a party party basis.

Preliminary

5. Counsel for the plaintiff submitted that she appeared on behalf of the plaintiff, the present Public Curator and Mr. Samson Jubi but did not appear on behalf of Julius Pololi or Allan Baniyamai.

6. As for not appearing for Mr. Pololi, counsel for the first, second and third defendants submitted that Julius Pololi is on the court record as the plaintiff personally and Twivey Lawyers are on the record as acting on behalf of him. Further, no notice of ceasing to act for Mr. Pololi has been filed or served by Twivey Lawyers.

7. The notice of change of lawyers filed on 1st November 2012 gives notice that Twivey Lawyers "will now act" for the plaintiff. There is no evidence of any notice pursuant to Order 2 Rule 38 or Rule 39 National Court Rules, relating to the removal or withdrawal of a lawyer being filed or served by or concerning Twivey Lawyers. Consequently, pursuant to Order 2 Rule 40 National Court Rules any change in the representation of the plaintiff by Twivey Lawyers shall not have effect as between the plaintiff or Twivey Lawyers on the one hand and the Court or any other party on the other hand. I am satisfied therefore that Twivey Lawyers continue to act for the plaintiff being "Julius Pololi - Acting Public Curator as Administrator and Trustee of the Deceased Estate of Late Thomas Arthur Wyborn".

8. The defendants seek that costs should follow the event, pursuant to Order 22 Rule 11 National Court Rules. That rule provides:

"If the Court makes any order as to costs, the Court shall, subject to this Order, order that the costs follow the event, except where it appears to the court that some other order should be made to the whole or any part of the costs."

9. This rule is only departed from for good reason. An example of this, submit the defendants', is where an unsuccessful party has previously made an offer to settle on more favourable terms than the judgment that was obtained. The defendants' also submit that costs in this instance should be awarded on an indemnity basis. They cite the Supreme Court case of Rex Paki v. Motor Vehicle Insurance Ltd (2010) SC1015 where at paragraph 27 the Court quotes from Island Helicopter Services Limited v. Wilson Sagati (2008) N3340 which quotes from a Canadian Court of Appeal decision which in turn quoted from Okin, The Law of Costs (2nd Ed. 1987), at pages 2-61 and 2-62 as follows:

"An award of costs on the solicitor-and-client scale, it has been said, is ordered only in rare and exceptional cases to mark the court's disapproval of the conduct of a party in the litigation. Orders of this kind have been made where a litigant's conduct has been particularly blameworthy, for example, where there were allegations of fraud or impropriety either proven or abandoned at trial; or wanton and scandalous charges; or allegations of perjury; or collusion; or where the responsible party perpetrated a fraud on the court, e.g., by preparing and presenting forged documents; or by filing a deliberately deceptive affidavit in support of an order without notice; or by concealing a document until trial and then relying on it; or prolonged the trial by engaging in obstructionist tactics; or brought motions without merit to exhaust an opponent's resources; or intentionally misled the court by giving false evidence as to material facts; or in contempt proceedings. Solicitor-and-client costs have been awarded to successful party where an action was without any foundation in law, or where an appeal was considered to be without merit; and in a libel action where fault was admitted, only the amount of damages being contested; or in an action for indemnification by an insured against his insurer where the insurer, in refusing to settle a personal injury claim had not used reasonable care for the protection of its insured, acted in bad faith and the plaintiff ought not to have had to bring an action".

10. The defendants' submit that in this instance:

a) there were multiple claims of fraud made against the first, second, third and fourth defendants, ranging from the original transfer of property to the first defendant from his father, rezoning and subdivisions of the property, and deliberate evasion of stamp duty involving all four defendants.

b) there was no admissible evidence to support any of the claims of fraud or improper conduct. There had been an order that the parties file affidavits intended to be used at the trial. The plaintiff sought to rely on Mr. Jubi's affidavits filed in support of interlocutory applications and filed no further affidavits of substance. Mr. Jubi's "evidence" (both by affidavit and orally) consisted mainly of unsubstantiated allegations, argument and conclusions.

c) it must have been apparent, at least by the time of the trial, and most likely at a much earlier stage, that the plaintiff's claims were not supported by the evidence.

d) the proceedings were misconceived in law. The findings of this court summarised at paragraph 50 of the court's reasons are that the plaintiff had no authority to sue because the proper party should have been a Corporation, and there had not been a grant of administration. The plaintiff was made aware of these matters by the pleadings. He then lodged an application for a grant, but did not pursue it (because a caveat was lodged) and still continued with the litigation.

e) there were other fundamental impediments to the claim, namely the Frauds and Limitations Act, and the indefeasibility provisions of the Land Registration Act. Again the plaintiff was alerted to these issues by the pleadings (and earlier) but still persisted with the proceeding.

f) the reasons for dismissing the claim did not turn on contested evidence, or on fine points of law where opinions might legitimately differ. The plaintiff's case was simply devoid of merit. The litigation was, or at least boarded on being an abuse of process. Consequently there should be an award of indemnity costs.

11. The defendants' further submit that the indemnity costs should be paid by Mr. Pololi, Mr. Jubi and Mr. Baniyamai personally. This is because Mr. Pololi was the unsuccessful party and there is no reason why an order should not be made against him personally. As for Mr. Jubi and Mr. Baniyamai, they are agents for the plaintiff.

12. In addition, they are both lawyers. Mr. Baniyamai's law firm were the lawyers on the record until, it appears, Mr. Jubi joined the employee of Twivey Lawyers. Mr. Jubi's evidence was that he and Mr. Baniyamai prepared the pleadings. The principal affidavit in support of the plaintiff's case was sworn by Mr. Jubi and prepared by Mr. Jubi and Mr. Baniyamai. It was filed by Baniyamai Lawyers.

13. The defendants' submit that Order 22 Rule 65(1) National Court Rules empowers the court to award indemnity costs against a lawyer where costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default. They make reference to Polye v. Papaki [2000] PNGLR 166 and submit that it is appropriate that an order be made against Mr. Baniyamai under this rule.

14. Both Mr. Baniyamai and Mr. Jubi may also be held liable for costs personally as agents for the plaintiff. They conducted the proceedings on behalf of the plaintiff, although there is a question mark over whether they were strictly acting within their authority. Their position is, at best, analogous to that of a receiver or liquidator or other "non-party" who has the conduct of proceedings. Such persons may be held personally liable for costs.

15. Counsel for the plaintiff submits that as indemnity costs are being sought, notice of this must be given and cites the Supreme Court decision in PNG Aviation Services Pty Ltd v. Karri (2009) SC1002 in which the court said at paragraph 82:

"The discretion in relation to an order for costs (on a solicitor-client basis) must be exercised judicially: having regard to the principles of natural justice by providing an opportunity for the party against whom the order has been sought to be heard and by making a decision which is supported by the reasons."

16. Reference is also made to the case of PNG Ports Corporation Ltd v. Canopus No 71 Ltd (2010) N4288 in which at paragraph 26, the case of Island Helicopter Services Limited (supra) is considered. In PNG Ports (supra), Kandakasi J noted that Injia DCJ (as he then was) in Islands (supra) as to the practice of asking for costs on a solicitor and client basis against lawyers, held that there must be proper forewarning as noted in the Supreme Court decision in PNG Waterboard v. Gabriel Kama (2005) SC821, and proper pleading by way of a motion clearly asking for such costs and supported by affidavit evidence which clearly identifies the conduct about which there is complaint.

17. In this instance, submits counsel for the plaintiff, no proper notice has been given to the persons against whom the subject orders are sought and a notice of motion as referred to in Islands (supra) has not been filed or served. Further, a letter sent to the offices of the lawyers for the plaintiff in November 2012 is not sufficient notice that indemnity costs orders are sought against non parties.

18. As to whether this court has jurisdiction to award costs against a non-party, counsel for the plaintiff submitted that clearly that it has, but that a non-party must be given notice that costs are sought against him.

19. In regard to the plaintiff's case being devoid of merit and misconceived as contended by the defendants, counsel for the plaintiff submits that on two occasions, injunctive relief was granted. For such relief to be granted the presiding judge would have determined that there was a serious question to be tried. Further, the fourth defendant withdrew its appeal against the injunctive relief that had been granted. Both of these factors are indicative of the plaintiff's case not being devoid of merit and misconceived.

20. Counsel for the plaintiff also submitted that the plaintiff was not able to properly prosecute his case at trial as the applications for the trial to be vacated were refused. This resulted in there not being any cross-examination of the defendants' witnesses and no submissions being made on behalf of the plaintiff.

Costs order against a non party

21. Counsel for the plaintiff and defendants submitted that this court has jurisdiction to award costs against a non party.

22. As Kidu CJ (as he then was) in Thiess Bros. (Pacific) Pty Ltd v. Chief Collector of Taxes [1982] 385 said at p 387; the Supreme Court and the National Court have the statutory power to award costs for proceedings before them. Section 184 (2) Constitution provides amongst others, that rules may make provision for and in respect of:

"(e) the costs of and relating to proceedings in the Supreme Court or the National court;...."

23. Order 22 National Court Rules is specifically concerned with costs. Order 22 Rule 4 (1) National Court Rules provides that:

"The powers and discretions of the Court in relation to costs shall be exercised subject to and in accordance with this Order."

24. Nowhere in Order 22 do the Rules prohibit an award of costs against a non-party. Order 22 Rules 64 and 65 provide for an award of costs against certain non-parties by providing for the specific practice and procedure in respect of an award of costs against a trustee and mortgagee, and a lawyer personally. That there are no rules that concern other non-parties does not detract from this court's jurisdiction to award costs against them, in my view. I am only aware of one decision in this jurisdiction in which costs were awarded against a non-party. That is the decision of Kirriwom J. in Umboi Timbers Investment Ltd v. Precision Logging Ltd (2008) N3346 in which His Honour, correctly in my respectful view, assumed that the National Court had that jurisdiction.

25. This jurisdiction to award costs against a non-party is consistent with the decisions of the House of Lords in Aiden Shipping Co Ltd v. Interbulk Ltd [1986] 1 AC 965, the High Court of Australia in Knight v. FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 and in respect of New Zealand, the Privy Council in Dymocks Franchise Systems (NSW) Pty Ltd v. Todd & Ors (No 2) (New Zealand) [2004] UKPC 39 which recognise a similar jurisdiction.

Notice to non parties

26. Counsel for the plaintiff submits that a notice must be given to a non party that a costs order is being sought against him especially when the costs order sought is on an indemnity basis. Further, in this instance, the notice given was not sufficient.

27. The notice that was given to Mr. Jubi and Mr. Baniyamai by the first, second and third defendants was by a letter dated 27th November 2012 from their lawyers to Twivey Lawyers by facsimile and hand delivery. In the letter, it is stated amongst others, that the plaintiff and his agents are placed on notice that the first, second and third defendants will be seeking an order for indemnity costs of and incidental to the proceedings and that any costs order in favour of the first, second and third defendants be made jointly and severally against Julius Pololi, Allan Baniyamai and Samson Jubi personally.

28. As to whether this constitutes sufficient notice to the non-parties Mr. Baniyamai and Mr. Jubi, they are both agents of the plaintiff. This was known to Twivey Lawyers, the lawyers for the plaintiff. Mr. Jubi had commenced employment with Twivey Lawyers. Mr. Baniyamai's firm had drafted the amended statement of claim and although Twivey Lawyers had taken over carriage of the matter for the plaintiff, Mr. Baniyamai remained an agent of the plaintiff. Mr. Baniyamai and Mr. Jubi as agents of the plaintiff were conducting the proceeding on behalf of the plaintiff. Their interests were the same as the plaintiff and Twivey Lawyers continued to act for the plaintiff. In such circumstances it is highly unlikely that Twivey Lawyers would not have notified both Mr. Baniyamai and Mr. Jubi of the costs application.

29. Further, no specific provision of the National Court Rules that stipulates the requirements of notice in such circumstances was relied upon by counsel and I am not aware of such a provision. Given the above, I am satisfied that the said letter of 27th November 2012 to Twivey Lawyers was sufficient notice to Mr. Jubi and Mr. Baniyamai of the claim of indemnity costs against them.

30. As to the notice that was given to the non parties by the fourth defendant, by letter dated 8th October 2012, the lawyers for the fourth defendant wrote to Baniyamai Lawyers. The letter was sent by facsimile and was hand delivered. The letter amongst others, notified that the fourth defendant would seek full indemnity costs from the plaintiff and Mr. Jubi for the entire proceedings. By letter dated 29th November 2013 the lawyers for the fourth defendant wrote to Twivey Lawyers and amongst others, put the plaintiff on notice that indemnity costs associated with the entire proceedings would be sought and that any costs orders would be sought against Mr. Jubi and/or Mr. Baniyamai personally unless they could establish that they were acting in accordance with a direction of the Public Curator as contemplated by s. 4 (2) and (3) and s. 35 (1) Public Curator Act.

31. For the reasons given in respect of notice given by the first, second and third defendants to the non parties, I am satisfied that the fourth defendant has given sufficient notice to Mr. Jubi and Mr. Baniyamai of its claim for indemnity costs against them.

Whether notice of motion required for an indemnity costs order against non parties

32. Counsel for the plaintiff, if I understand correctly, submitted that the application for indemnity costs against non parties should be made by notice of motion. Reliance was placed upon the Island Helicopter case (supra) and PNG Ports v. Canopus (supra).

33. From a perusal of the Island Helicopter case (supra), it is apparent that it is concerned with an oral application for indemnity costs against a lawyer personally. The comments of Injia DCJ (as he then was) concerning a general rule of practice in paragraphs 8 - 13 are in respect of Order 22 Rule 65 National Court Rules. This rule is specifically concerned with an award of costs against a lawyer personally. That His Honour's comments are confined to applications under Order 22 Rule 65 is demonstrated by His Honour's comments concerning such an order being a serious matter for the lawyer concerned both in terms of the financial burden placed upon the lawyer and the adverse affect on his or her professional reputation.

34. In PNG Ports v. Canopus (supra), it is apparent that Kandakasi J was of the view that Injia DCJ's comments in the Island Helicopter case (supra) were so confined. Also in Patrick v. Kimas (2010) N3913, Gavara Nanu J stated as to the Island Helicopter case (supra) that, "the relevant part of the ruling relates to an application seeking costs against a lawyer personally, under Order 22 r 65 (1) of the National Court Rules."

35. Given the above, and in the absence of any Rule that requires an application for an award of costs on an indemnity basis against a non party to be made by notice of motion, I am satisfied that although a notice of motion has not been filed, the defendant is not precluded from seeking costs on an indemnity basis against Mr. Baniyamai and Mr. Jubi as non parties.

Whether costs to be awarded on an indemnity basis

36. In Rex Paki v. MVIL (supra), the Supreme Court, of which I was a member held that:

"The award of costs on an indemnity basis is discretionary. An order for costs on an indemnity basis may be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable or blameworthy that he should be so punished by such an order. The question is whether the conduct of the appellant in this matter is such that it caused the respondent to incur unnecessary costs."

37. Here, the defendants' submit amongst others, that the claims of the plaintiff were based upon alleged negligent and fraudulent acts which in some instances occurred almost 30 years before the proceeding was commenced. The claims were clearly statute barred pursuant to the Frauds and Limitations Act. This court also found that the plaintiff did not have the authority to sue as the proper party should have been a corporation and there had not been any grant of administration. The challenge upon the fourth defendant's registered titles was bound to fail because of the indefeasibility provisions in the Land Registration Act and there was no admissible evidence to support any of the claims of fraud or improper conduct.

38. When it is considered that the plaintiff's lawyers were put on notice of the defects in the proceeding by the defendants' lawyers on numerous occasions, but notwithstanding this, the proceedings were continued with, it can be seen that the conduct of and on behalf of the plaintiff in the prosecution of the proceeding caused the defendants' to incur unnecessary costs.

39. As to the submission of the plaintiff that on two occasions injunctive relief was granted and continued and therefore the presiding judge who considered and granted the applications for injunctive relief would have found that there was a serious question to be tried, there was no evidence before this court of what material the presiding judge was able to and did consider and on what basis his decisions were made. Further, after the injunctive relief was granted the plaintiff was put on notice of the defects in the proceeding by the pleading of the defendants and the letters sent to his lawyers as referred to. Also, the fact that the fourth defendant may have abandoned an application for leave to appeal the decision to grant injunctive relief does not lead to the conclusion that there was merit in the plaintiff's claim. I am of the view, for the reasons given that the plaintiff did not have an arguable case and that the plaintiff's claim was devoid of merit. I am satisfied for the reasons given that the conduct of the proceeding by and on behalf of the plaintiff was improper and unreasonable such that an award of costs on an indemnity basis is appropriate.

Costs order on an indemnity basis against non parties

40. In ToRobert v. ToRobert (2012) SC1198, the Supreme Court said that:

"The nature of a costs order is inherently a matter of discretion for the trial judge (PNG Ports Corporation Ltd v. Canopus No 71 Ltd (2010) N4288). Provided the discretion is exercised judicially an appeal court should rarely intervene."

41. What are the principles by which the discretion to order costs to be paid by a non-party are to be exercised? I am not aware of any cases in this jurisdiction that have specifically considered this point. In Dymocks Franchise Systems v. Todd (supra), the Privy Council, after stating that their Lordships were not persuaded that there is in fact any material difference in the approach taken in the jurisdictions of the United Kingdom, Australia and New Zealand to the exercise of this discretion, summarised the main principles governing the proper exercise of the discretion.

42. Before doing so however, the Privy Council considered the question of causation and stated that:

"Although the position may well be different when a number of non-parties act in concert, their Lordships are content to assume for the purposes of this application that a non-party could not ordinarily be made liable for costs if those costs would in any event have been incurred even without such non-party's involvement in the proceedings."

It was then concluded that the subject appeal would not have been pursued and the costs incurred if it were not for the involvement of the non-party.

43. The main principles summarised by the Privy Council that should govern the proper exercise of discretion are:

a) Although costs orders against non-parties are to be regarded as "exceptional", exceptional means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense. The ultimate question in any such "exceptional" case is whether in all the circumstances it is just to make the order.

b) Generally, the discretion will not be exercised against a non-party with no personal interest in litigation, who does not stand to benefit from it, is not funding it as a matter of business, and in no way seeks to control its course.

c) Where the non-party not merely funds the proceedings but substantially also controls or at any rate is to benefit from them, justice will ordinarily require that if the proceedings fail, he will pay the successful party's costs. The non-party in these cases is seen as gaining access to justice for his own purposes and is the "real party" to the litigation.

44. The Privy Council then stated that perhaps the most difficult cases are those in which non-parties fund receivers or liquidators in litigation designed to advance the funder's own financial interests. In considering this category the Privy Council referred to amongst others, this statement by Tompkins J in Carborundum Abrasives Ltd v. Bank of New Zealand (No 2) [1992] 3NZLR 757 at 765:

"Where proceedings are initiated by and controlled by a person who, although not a party to the proceedings, has a direct personal financial interest in their result, such as a receiver or manager appointed by a secure creditor, a substantial unsecured creditor or a substantial shareholder, it would rarely be just for such a person pursuing his own interests, to be able to do so with no risk to himself should the proceedings fail or be discontinued. That will be so whether or not the person is acting improperly or fraudulently. In many cases a major consideration will be the reason for the non-party causing a party, normally but not always an insolvent company, to bring or defend the proceedings. If a non-party does so for his own financial benefit, either to gain the fruits of the litigation or to preserve assets in which the person has an interest, it may, depending upon the circumstances, be appropriate to make an order for costs against that person. The relevant factors will include the financial position of the party through whom these proceedings are brought or defended and the likelihood of it being able to meet any order of costs, the degree of possible benefit to the non-party and whether, in all the circumstances, the bringing or defending the claim - although in the end unsuccessful - was a reasonable course to adopt."

45. Reference was also made to this statement in Knight v. FP Special Assets Ltd (supra) where in the High Court of Australia Mason CJ and Deane J said at p595:

"For our part, we consider it appropriate to recognise a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. The category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of the case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made."

46. The decision in Dymocks Franchise (supra) has been widely referred to by Courts in England and Australia including in the decisions of: Sims v. Hawkins [2007] EWCA Civ 1175, FPM Constructions v. Council of the City of Blue Mountains [2005] NSWCA 340, May v. Christodoulou [2011] NSWCA 75 and Goodwood Recoveries Ltd v. Breen [2005] EWCA Civ 414.

47. In Sims v. Hawkins (supra) Lord Justice Rix said at paragraph 2 that:

"It is now well established that one of the principal questions for the court is whether the non-party (who renders himself liable to the regime, whether by funding or controlling the litigation or even in some other way) is the "real party" to the litigation: see Dymocks at para 25"

48. In FPM Constructions (supra), Basten JA with the agreement of Beazley and Giles JJA, after reviewing some of the cases stated at paragraph 210:

"What is significant from a survey of the cases in which orders have been made against non-parties is that they tend to satisfy at least some if not a majority of the following criteria:

a) the unsuccessful party....... was the moving party and not the defendant;

b) the source of funds for the litigation was the non-party or its principal;

c) the conduct of litigation was unreasonable or improper;

d) the non-party, or its principal, had an interest (not necessarily financial) which was equal to or greater than that of the party or, if financial, was a substantial interest, and

e) the unsuccessful party was insolvent or could otherwise be described as a man of straw."

49. Counsel for the first, second and third defendants submitted that in the exercise of its discretion to order costs against a non-party, this court should take into account the office that Mr. Baniyamai and Mr. Jubi, purported to represent. They were acting as agents for the Public Curator who has responsibility for certain deceased estates, and ultimately is or should be answerable to the beneficiaries of those estates. His position, and that of his agents, is very similar to that of a trustee. It is also analogous to the office of a liquidator or receiver. Further, the principles concerning the personal liability for the costs of trustees, liquidators or receivers are applicable. The test is whether the party responsible for commencing and prosecuting the proceedings acted prudently and responsibly, with the benefit of commercial common sense, and with the benefit of competent legal advice: Arena Management Pty Ltd v. Campbell Street Theatre Pty Ltd (No 2) [2010] NSWSC 123 paragraphs [23[ - [27].

50. Reference was also made to Mead v. Watson [2005] NSWCA 133 para [155] – [159]; Adsett v. Berlouis [1992] FCA 368; (1992) 109 ALR 100 page 109 and Arena Management Pty Ltd (Receiver & Manager Appointed) v. Campbell Street Theatre Pty Ltd [2011] NSWCA 128, (the appeal from the Supreme Court decision cited above.)

51. From a perusal of these decisions however, it is only in the New South Wales Court of Appeal decision of Arena Management v. Campbell Street (supra) where there is a reference to the person in respect of whom the question of costs was under consideration being a non-party. This is at paragraph 19 and concerned the liquidator being in the position of a non party in respect of some claims although he was a party in respect of the other claims. Apart from this decision, the other decisions cited are concerned with whether liquidators or a trustee, who were parties to the respective litigation, should be personally liable for costs.

52. The principles which apply in determining whether an order for costs should be made against a non party in my view are those to which I have already made reference and those are the principles that I will consider in this instance.

53. I will consider the question of Mr. Jubi first. The first question is whether any of the costs of the litigation brought by the plaintiff would have been incurred but for Mr. Jubi's involvement.

54. The fourth defendant contends that it is clear from the evidence that Mr. Jubi in arranging the commencement of this proceeding, was motivated by the business rivalry he had for several years with Mr. Norman May and Mr. Brian Wyborn, the first defendant, and not merely because of a concern for Mr. Kenneth Wyborn not receiving what Mr. Jubi thought was his rightful inheritance, as Mr. Jubi had claimed in his evidence.

55. There had been prior legal proceedings concerning some of the land the subject of this proceeding, that Mr Jubi had previously contracted to purchase some of this land from Mr. Brian Wyborn and that prior proceedings had been resolved in favour of Mr. Brian Wyborn in 2010. Further, Mr. Jubi owns an adjacent parcel of land and had complained to the fourth defendant in September 2011 about the proposed purchase of land by the fourth defendant in the subject area.

56. There is further evidence that Mr. Jubi, using a "Westend Ltd" letterhead, wrote to the Fraud Squad by letter dated 10th April 2012 requesting its cooperation in regard to issues concerning the subject land. The evidence suggests that Mr. Jubi had been arranging for assistance from the Fraud Squad before he was purportedly appointed as agent of the Public Curator.

57. Mr. Jubi together with Mr. Baniyamai was purportedly appointed as agents of the Public Curator. The proceedings were filed by Baniyamai Lawyers. Mr. Jubi's evidence is that he and Mr. Baniyamai prepared the pleadings. The principal affidavit in support of the plaintiff's case was sworn by Mr. Jubi. Mr. Jubi signed the undertaking as to damages. When Mr. Jubi joined the employment of Twivey Lawyers, Twivey Lawyers took over carriage of the proceeding on behalf of the plaintiff.

58. I am satisfied from the evidence that the proceeding would not have been commenced if it had not been for Mr. Jubi. Mr. Jubi has been the driving force behind the proceeding being commenced and its prosecution. Consequently, if it was not for the involvement of Mr. Jubi the costs of the proceeding would not have been incurred.

59. Secondly, I am also satisfied from the above that Mr. Jubi is the person who has controlled or sought to control the course of the proceeding.

60. A third consideration is whether the conduct of the litigation has been unreasonable or improper. As previously referred to, the first, second and third defendants contend that there were multiple claims of fraud, but there was no admissible evidence to support any of these claims. The evidence relied upon in support of the plaintiff's case consisted mainly of unsubstantiated allegations, arguments and conclusions. Further, the proceeding was misconceived at law for the reasons set out in my judgment and there were fundamental impediments to the claim such as the Frauds and Limitations Act and the indefeasibility provisions of the Land Registration Act. The lawyers for the plaintiff were alerted to these issues but persisted with the prosecution of the proceeding. The argument of the plaintiff that because the trial was not vacated or adjourned, the plaintiff could not properly present his case, has no merit as fundamentally the proceeding was misconceived and devoid of merit.

61. I agree with the submissions of the defendants. It cannot be said in my view that the plaintiff had an arguable case and it cannot be said that the plaintiff and Mr. Jubi acted prudently and reasonably in prosecuting the proceeding, particularly after the defendants' lawyers had given notice of the defects in the proceeding. In this regard, it is not necessary that it be shown that there was impropriety on behalf of Mr. Jubi as was said in Dymocks Franchise (supra) at paragraph 33:

"The authorities establish that, whilst any impropriety or the pursuit of the speculative litigation may of itself support the making of an order against a non-party, its absence does not preclude the making of such an order."

62. A further consideration is whether Mr. Jubi has an interest in the proceeding. As referred to, the fourth defendant contends that Mr. Jubi was motivated by his business rivalry with Mr. Norman May and Mr. Brian Wyborn and was not merely motivated by his concern for Mr. Kenneth Wyborn to receive what he thought was his rightful inheritance. From a consideration of the evidence, I agree with the submissions of the fourth defendant. Even, if Mr. Jubi was not so motivated, he gave evidence that he was concerned for Mr. Kenneth Wyborn and that was why he went to the Public Curator. So in any event, Mr. Jubi has an interest in the proceeding. In respect of both interests, I am satisfied that they are least equal to the interests of the plaintiff given that until the commencement of this proceeding, the Public Curator had not taken any interest in the estate of the late Mr. Thomas Wyborn, someone who had died about 18 years previously in 1994.

63. Given the above, I am satisfied Mr. Jubi can be considered to be "the real party" as that phrase is used in Dymocks Franchise (supra) and subsequent decisions. I am further satisfied that in all the circumstances the bringing of this proceeding was not a reasonable course of action to adopt and that it is in the interests of justice that the costs of this proceeding should be paid by Mr. Jubi personally on an indemnity basis. Further, as he is acting as agent for the plaintiff, Mr. Jubi should be so liable for those costs together with the plaintiff, jointly and severally.

64. As for Mr. Baniyamai, although his firm was responsible for the drafting of the pleadings and the commencement of the proceeding, and that he also is an agent of the plaintiff, as referred to, the reason the proceeding was commenced was because of the involvement of Mr. Jubi and he has been the driving force behind its continuation. Consequently the costs orders against Mr. Baniyamai should be refused. As for a cost order being made against Mr. Baniyamai in his capacity as a lawyer, he has not been the lawyer on the record for the plaintiff since November 2012. Considerable activity has occurred in the prosecution of the proceeding since then under the carriage of other lawyers, and in those circumstances I am not satisfied that an order for costs against Mr. Baniyamai in his capacity as a lawyer is justified.

Orders

65. The plaintiff and Mr. Samson Jubi personally, shall pay, and are jointly and severally liable for, the defendants' costs of and incidental to this proceeding on an indemnity basis.
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Twivey Lawyers: Lawyers for the Plaintiff
Posman Kua Aisi: Lawyers for the First, Second and Third Defendants
Gadens Lawyers: Lawyers for the Fourth Defendant