AIP Property Holdings Pty Ltd v Fellowship of the Esoteric School of Higher Learning Ltd [2023] NSWSC 986

Catchwords: COSTS — successful application to withdraw caveat — whether usual rule that costs follow the event should apply — no issue of principle Supreme Court New South Wales Medium Neutral Citation: AIP Property Holdings Pty Ltd v Fellowship of the Esoteric School of Higher Learning Ltd [2023] NSWSC 986 Hearing dates: On the papers Date of orders: 21 August 2023 Decision date: 21 August 2023 Jurisdiction: Equity Before: Henry J Decision: The defendant to pay the plaintiff’s costs on an ordinary basis as agreed or assessed. Catchwords: COSTS — successful application to withdraw caveat — whether usual rule that costs follow the event should apply — no issue of principle Legislation Cited: Civil Procedure Act 2005 (NSW) Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) Real Property Act 1900 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Choi v Kim [2013] NSWSC 1774 Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240 Hunter v Roberts (No 2) [2019] NSWCA 235 Leichhardt Municipal Council v Green [2004] NSWCA 341 Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Ritter v Godfrey [1920] 2 KB 47 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Turkmani v Visvalingam (No 2) [2009] NSWCA 279 Valmont Interiors v Giorgio Armani Australia Pty Ltd (No 3) [2021] NSWCA 160 Category: Costs Parties: AIP Property Holdings Pty Ltd (Plaintiff) Fellowship of the Esoteric School of Higher Learning Ltd (Defendant) Representation: Counsel: M Gunning (Plaintiff) Solicitors: Small Myers Hughes Lawyers (Plaintiff) Wall & Company Lawyers (Defendant) File Number(s): 2022/39395 Publication restriction: Nil Judgment These reasons deal with the costs of the plaintiff ’ s successful a pplication for withdrawal of a caveat with dealing number AR723572 ( Caveat ), lodged by the defendant over land owned by the plaintiff . In accordance with the Court ’ s directions, the parties have filed written submissions and the issue of costs is to be determined on the papers . They have also filed further affidavits which should be taken as read . The plaintiff , AIP Property Holdings Pty Ltd, seeks an order for its costs to be paid on an indemnity basis . The defendant , Fellowship of the Esoteric School of Higher Learning Ltd, contends that each party should bear their own costs or, in the alternative, that there be no order as to costs . Background The plaintiff ’ s application was heard and determined by me sitting as D uty Judge on 15 February 2022 . An order was made pursuant to s 74MA of the Real Property Act 1900 (NSW) ( RP Act ) for the Caveat to be withdrawn , with ex tempore reasons given that day . The Caveat had been lodged by the defendant on 14 December 2021 over the titles of three properties located in Tyalgum, New South Wales, in Folio Identifiers 5/662423, A/354819 and 4/6/759012 of which the plaintiff was the registered proprietor . The interest claimed in the Caveat wa s an estate in fee simple by virtue of an agreement dated 17 May 2019 between the defendant and the plaintiff . The details supporting the claimed interest state d “ Proprietary estoppel ” . T he plaintiff had acquired the land contained in Folio Identifiers 5/662423 and A/354819 ( Flutterbies property ) on 1 July 2019 from Dinah Klinge , as vendor, pursuant to a contract of sale entered into on 20 May 2019 subject to an existing tenancy to Flutterbies Caf é . On or about 14 June 2019, t he plaintiff entered into a new lease of the Flutterbies property with Flutters Cottage Caf é Pty Ltd, which was varied on 1 October 2020 . According to the plaintiff ’ s director, Andrew Price, the plaintiff purchased the Flutterbies property after his discussions with two members of the spiritual community that live in Tyalgum who were employees of Flutterbies Caf é and a director and secretary of the defendant . The discussions concerned whether Mr Price would lend money to enable Ms Klinge to pay out the mortgage of the Flutterbies property , which he declined to do . Mr Price sa id he would be willing to purchase the Flutterbies property and continue to rent it to them at a commercial rate , he would sell the Flutterbies property to them for the same price plus expenses but only if the sale occurred within three months of his purchase , and he was not willing to be bound by any legal or formal agreement in respect of the proposal within that time, which they agreed to . According to Mr Price, he subsequently agreed to extend the three month timeframe to 12 months (to around May 2020) but after that the Flutterbies property could only be acquired at market rate if he were to put it on the market . T h e plaintiff had acquired the land contained in Folio Identifier 4/6/759012 ( Bank Building property ) on 9 April 2021 from LGAN Pty Ltd as trustee for the LGAN Trust (being an entity of which Ms Klinge was the sole director) , as vendor, pursuant to a contract of sale entered into on 22 February 2021 . The Bank Building property was subject to an existing tenancy to persons known as Lightly Tossing Sunshine and Kirra Falls Rain Springs, who entered into a new lease with the plaintiff on or about 8 April 2021 . In about September 2021, the plaintiff decided to sell the Flutterbies property and the Bank Building propert y together with three other properties located at Coolman Street , Tyalgum and another property located at Balluna Street, Tyalgum that the plaintiff and an associate owned ( Tyalgum portfolio ) . On or about 11 October 2021, Mr Price sent an email to the “ Tyalgum Business Group ” (being a collection of people in Tyalgum who were interested in the business activities in the village) informing them that the Tyalgum properties were to be placed on the market as a single portfolio and would not be sold individually . Mr Price was subsequently contacted by a director of the defendant, who indicated that the community were working to secure finance to buy the Tyalgum portfolio . Mr Price told the director that they should contact Ray White real estate agency and deal with them directly . On 1 December 2021, Bronwen Nichol l s, a solicitor at Wall & Company Lawyers (who were acting for the defendant), sent an email to Ray White , copied to Mr Price, containing an offer to purchase the Flutterbies property and the Bank Building propert y , with the purchaser identified as “ The Bells Are Ringing Pty Ltd as the trustee for Heart of Love Trust ” . Ms Nichol l s ’ email asserted that her clients had made improvements to the buildings that were arguably works of a capital nature beyond lessee ’ s works . Prior to sending that offer, Ms Nichol l s had been in communication with Mr Price and had referred to an arrangement at the time Mr Price acquired the Flutterbies property to the effect that he would ultimately sell it back to one or more or of the members of the “ Fellowship community ” at a price that reflected the off-market price at which he acquired it . Mr Price rejected M s Nicho l ls ’ characterisation of the arrangement, noting that the extended period had expired in 2020, but indicated that he would extend an opportunity to the community to purchase the Flutterbies property and the Bank Building propert y exclusively from the rest of the Tyalgum portfolio if an official unconditional offer in alignment with current market expectations was received by close of business on 26 November 2021, and he suggested they contact Ray White and complete the contract with the offer they wanted to put in . As events transpired, the offer sent by Ms Nichol l s was not accepted by the plaintiff . On 7 December 2021, Ray White sent an email to Ms Nichol l s advising that contracts had been issued and a deposit had been paid for the Tyalgum portfolio, a number of offers had been tabled for the portfolio as well as individual properties and combinations of those, including from Ms Nichol l s ’ clients, and a number of offers for the Flutterbies property and the Bank Building propert y had been received at substantially higher amounts than that offered by Ms Nicho l ls ’ clients . On 8 December 2021, Ms Nicho l ls sent an email to Michael Small, a solicitor at Small Myers Hughes Lawyers (who were acting for the plaintiff), in which she asserted that there was some unconscionability in Mr Price selling the property and asked whether Mr Price would urgently reconsider entering into a contract to sell to a third party . Mr Small ’ s response, sent on 10 December 2021, stated that Mr Price had proceeded to sell the Tyalgum portfolio as was his intention, noting that no offer was forthcoming from M s Nicho l l ’ s clients on the conditions requested within the time period or prior to the scheduled auction . Later that day, Mr Small and Ms Nichol l s had a discussion in which she asked whether the property had been sold ; Mr Small ’ s file note records that he told Ms Nichol l s that that was his understanding, as per his letter. Further communications between Ms Nichol l s , Mr O ’ Brien and Mr Small ensued, some of which was marked as without prejudice save as to costs . Relevant to the issues on this application are the following communications : on 10 December 2021 , Ms Nicho l ls sent an email on a without prejudice save as to costs basis asserting that her clients (who she referred to as “ a community of people ” comprising “ an integrated network of individuals and entities ” , with the defendant being “ something of an umbrella organisation ” ) had an equitable interest in the property, they were assessing the need for an urgent application and were contemplating a caveat over the relevant titles; on 13 December 2021 , Ms Nichol l s advised that she was in the process of registering a caveat but was hopeful of achieving a mutually agreeable outcome; on 14 December 2021, Mr O ’ Brien indicated that Mr Price did not accept that either The Bells Are Ringing Pty Ltd as the trustee for Heart of Love Trust or the defendant had an equitable interest in the property , that all steps would be taken to remove a caveat if one was lodged and that costs would be sought on an indemnity basis; on 17 December 2021 , Ms Nichol l s confirmed that the Caveat had been lodged by the defendant and asserted that , amongst other things, Ms Klinge had held the properties purchased by the plaintiff on trust for the “ Community ” on an informal basis as she had purchased them from someone else who held them on trust for the Community and her clients were in the process of developing the properties in reliance on representations made by Mr Price; on 22 December 2021 , Mr Small requested Ms Nichol l s provide a copy of the agreement dated 17 May 2019 referred to in the Caveat and the details of the alleged cause of the proprietary estoppel; later that day , Ms Nichol l s sent an email in response on a without prejudice save as to costs basis that asserted that an agreement or “ quasi-contract ” flowed from the representations made by Mr Price at the time he acquired the Flutterbies property and by Ms Klinge and Mr Price after he purchased the Bank Building property, and asked that Mr Price consider how the matter might be resolved; on 24 December 2021, Mr O ’ Brien demanded that the Caveat be withdrawn by close of business on 7 January 2022, failing which it was anticipated that instructions would be received to bring an urgent application for its removal in which event the plaintiff would seek an order for indemnity costs . The letter also asserted that Ms Nicho l ls ’ clients had failed to identify the facts that supported the asserted caveatable interest and that the plaintiff denied the allegations made in Ms Nicholls ’ 22 December email regarding the representations attributed to Mr Price; on 21 January 2021 , Ms Nichol l s responded to the 7 February letter on a without prejudice save as to costs basis, stating that her clients would be willing to withdraw the Caveat on conditions that included reimbursement of financial contribution to works (totalling $300,000) , a payment of $100,000 to resolve the issue of the “ under market sale ” of the Flutterbies property and an extension of the current term of the lease for a further five years; on 9 February 2022, Mr O ’ Brien sent a letter (by email) marked without prejudice save as to costs which notified Ms Nichol l s that he had instructions to approach the Equity Duty Judge the following day to file a summons seeking orders for the withdrawal of the Caveat (in the form attached to the letter ) . The letter confirmed that the plaintiff exchanged contracts to sell the Tyalgum portfolio on 20 December 2021 with a completion date of 28 January 2022, which had been extended to 16 February 2022, set out the facts and principles that were said to support the withdrawal of the Caveat and place d Ms Nicholls ’ clients on notice of the arguments that would be made before the Equity Duty Judge in 11 numbered paragraphs . The letter invited Ms Nichol l s ’ clients to withdraw the Caveat forthwith and respond in writing by 4 .00 pm that day that it had done so, failing which proceedings would be commenced . The letter also stated that the costs of a successful application would be sought on an indemnity basis and the letter would be relied on in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333 ; and later that day , Ms Nichol l s sent an email in response on a without prejudice save as to costs basis in which she asserted that , until receipt of Mr O ’ Brien ’ s letter that day , Ms Nicholl ’ s clients were unaware that a contract for sale had been entered into . She also referred to the plaintiff ’ s delay in taking action and its failure to exercise its rights to apply for a lapsing notice and , if they proceeded, Ms Nichol l s ’ clients would seek to injunct the plaintiff from the sale and extend the Caveat . Ms Nicholls also made a revised offer to settle . The plaintiff commenced the proceedings by summons filed on 10 February 2022 . The plaintiff succeeded in obtaining relief pursuant to s 74MA of the RP Act as the Court was not satisfied that there was a serious question to be tried that the defendant had a caveatable interest in the Flutterbies property and the Bank Building propert y as claimed in the Caveat, and the balance of convenience did not favour the defendant and the continuation of the Caveat : Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240 at [77] and [79] . As to the claimed caveatable interest, the material before the Court did not establish an arguable case of an estate or an interest in an estate in fee simple by virtue of an agreement between the plaintiff and the defendant on 17 May 2019 . The difficulties with that claim were that t h ere was no agreement in writing which created or conveyed an estate in fee simple to the defendant, there was no evidence of any consideration flowing from the defendant to support such an agreement and the plaintiff was not able to create or dispose of such an interest at that time as it did not own the caveated properties as at 17 May 2019 . As to the claim of proprietary estoppel, at the hearing, the defendant ’ s solicitor was unable to clearly articulate the basis of such a claim by the defendant . The defendant was described as the “ most natural entity ” as representations were made by Mr Price to “ members of the community ” , but it appeared that the defendant had filed the Caveat because other entities did not have the resources and the defendant represented them . The proprietary interest was described as both a first right of refusal and a right to take the property on specific terms which were not identified , and there was an absence of ev idence to demonstrate that the defendant relied on any promise or representation to convey the Flutterbies property and the Bank Building propert y on terms to its detriment . On this latter point, and in relation to the claim that significant works had been done to improve the properties to the defendant ’ s detriment , there was nothing before the Court to suggest that the works were undertaken by the defendant , as distinct from the lessees of the properties or that the plaintiff had authorised any significant improvements . To the extent that the defendant relied on unconscionable conduct that would attract the intervention of equity and the imposition of a constructive trust (which was not claimed in the Caveat ), that would not mean that the defendant had a present caveatable interest in the properties: Choi v Kim [2013] NSWSC 1774 ( Choi v Kim ) at [5] . In my view, the claimed interest in the properties as an e state in fee simple was also wrongly described as it was seemingly inconsistent with a claim based on proprietary estoppel . That misdescription was a matter of substance and not merely form such that the Caveat was deficient: Choi v Kim at [6] – [11]; and RP Act , ss 74F and 74L. I was also satisfied that the balance of convenience favoured the plaintiff and the withdrawal of the C aveat in this case . T he defendant ’ s claim to a caveatable interest was weak and the Caveat was impacting the imminent date for completion of the sale contracts of the Ty a lgum portfolio and another contract ofsale for which the plaintiff was purchaser . Th is was in the context where the evidence before the C ourt established the following: the plaintiff had entered into two contracts for the sale of the Tyalgum portfolio on 20 December 2021, one relating to the properties located at Coolman Street that included the Flutterbies property and the Bank Building propert y ( Coolman Contract ), and the other relating to the property at Balluna Street ( Balluna Contract ) ; the Coolman Contract and Balluna Contract were interdependent as they provided for completion on the same day , which had been extended to 16 February 2022 , such that if one contract did not proceed neither would the other; the Coolman Contract purchaser would only accept a further extension if there was no extension to the Balluna Contract; and the plaintiff , as purchaser , had entered into a contract to purchase another property which would complete subject to completion of the Coolman Contract . While not determinative, it was also a relevant factor to the exercise of the Court ’ s discretion that other remedies, such as equitable comp ensation or damages , might be available to the defendant or its related entities based on a claim of proprietary estoppel: Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [85] . Legal principles The principles applicable to the making of an order for costs are well established . The Court has a broad discretion to determine who should pay costs, the extent of those costs and whether they should be paid on an ordinary or indemnity basis: Civil Procedure Act 2005 (NSW), s 98(1) . Although broad, the Court ’ s discretion as to costs is subject to legislative provisions, Court rules and established principles, including the principle that the award of costs is compensatory in nature, not punitive: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 ( Oshlack v Richmond River ) at [44] and [65]. The usual rule is that costs follow the event and are payable on an ordinary basis unless it appears that some other costs order should be made as to part or all of the costs: Uniform Civil Procedure Rules 2005 (NSW) , rr 42.1 and 42.2. The question of whether the re should be a departure from the ordinary rule that costs follow the event should be considered with regard to the idea of fairness underlying the making of the costs order and what the Court considers to be the responsibility of each party for the incurring of costs . Generally, a successful party ought not be deprived of their costs unless they are guilty of some sort of misconduct relating to or leading up to the circumstances of the litigation: Oshlack v Richmond River at [69]; and Turkmani v Visvalingam (No 2) [2009] NSWCA 279 at [13]. As with costs orders generally, the purpose of an indemnity costs order is not to punish an unsuccessful party but to compensate the successful party more fully for its costs in circumstances where the exercise of discretion calls for such an order . Such circumstances include where there is conduct by the unsuccessful party which is plainly unreasonable or there is some relevant delinquency on their part: Oshlack v Richmond River at [44]. The rejection of a Calderbank offer in circumstances where the final outcome is less favourable to the offeree enlivens a discretion to award indemnity costs but does not create any prima facie right to such an order . In order to warrant an indemnity costs order, a Calderbank offer must embody a genuine compromise and it must be shown by the party relying on it that it was unreasonable for the unsuccessful party not to accept: Leichhardt Municipal Council v Green [2004] NSWCA 341; and Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344 ( Miwa v Siantan Properties ) at [8] and [12] – [19] . Factors that are relevant to consider as to whether the non-acceptance of a Calderbank offer was unreasonable include the stage of the proceedings at which the offer was received, the time allowed for acceptance, the extent of the compromise and whether the offer foreshadowed an application for indemnity costs in the event of its rejection: Valmont Interiors v Giorgio Armani Australia Pty Ltd (No 3) [2021] NSWCA 160 at [25] . Consideration and determination The plaintiff seeks an order that the defendant pay the plaintiff ’ s costs on an indemnity basis relying, in particular, on the letter sent by its solicitor dated 9 February 2022 which stated that the plaintiff would commence proceedings unless the defendant agreed to withdraw the Caveat by 4 .00 pm that day (as referred to at [ 17(i) ] above) . The plaintiff submits that it was unreasonable of the defendant not to have agreed to remove the Caveat within the time period stipulated in the 9 February letter and that indemnity costs should be awarded for the following reasons: the plaintiff was due to settle the sale of the caveated properties on 16 February 2022 and the defendant had been aware for some time that the plaintiff was in the process of selling them; the 9 February letter clearly set out the arguments and issues that the plaintiff intended to present to the Court, noting that a number of those arguments identified were determinative in the exercise of the Court ’ s discretion to remove the Caveat; the matters raised in the 9 February letter should not have come as a surprise to the defendant as the plaintiff had identified and raised a number of issues with the Caveat from December 2021; the plaintiff had foreshadowed in writing on two prior occasions (on 14 and 24 December) that it would seek urgent orders for the removal of the Caveat and indemnity costs should the defendant fail to remove it; and the 9 February letter expressly stated that it would be relied on in support of an application for indemnity costs . The defendant acknowledges that a successful litigant should usually have their costs paid on an ordinary basis . However, it opposes the plaintiff ’ s application for indemnity costs and contends that the Court should make no order as to costs (with the intent that each party pay their own costs) because the plaintiff in this matter has “ done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense ” , citing Ritter v Godfrey [1920] 2 KB 47 at [60] . The defendant ’ s submissions refer to two elements of the plaintiff ’ s actions that it says were calculated to occasion unnecessary litigation and expense, as follows: the refusal to state unequivocally whether or not the plaintiff was bound by a contract or contracts for sale that were impeded by the Caveat until five business days prior to the settlement date of those contracts for sale and simultaneously with the commencement of the proceedings; and the refusal to use the caveat lapsing process established by s 74J of the RP Act de spite having the opportunity to do so. The defendant submits that the plaintiff ’ s actions were designed to mislead the defendant and to obtain an advantage in the proceedings , and in those circumstances the plaintiff ought not to benefit from a costs order in its favour . Reference was also made to sections of the Legal Profession Uniform Law Australian Solicitors ’ Conduct Rules 2015 (NSW) ( Solicitors’ Conduct Rules ) which call on solicitors to be honest and courteous in all dealings in the course of legal practice and to not use tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frustrate another person in any action or communication: Solicitors ’ Conduct Rules, ss 4.1. 2 and 34.1.3. I reject the defendant ’ s contention that the plaintiff instituted the suit or conducted itself in a manner that caused or occasioned unnecessary litigation or expense such as to warrant the making of a costs order otherwise than in accordance with the usual order that costs follow the event. Dealing first with the defendant ’ s reference to the Solicitors ’ Conduct Rules, there is nothing in the material before the Court to indicate that the plaintiff ’ s legal representatives conducted themselves otherwise than honestly and courteously with the defendant ’ s legal representatives , or that they used tactics that went beyond what could be considered to be legitimate in this case . It may be correct that the plaintiff did not unequivocally state that the contracts for sale had formally exchanged , that 16 February 2022 was the completion date or that the Caveat was impeding completion until the 9 February letter . However, I am not persuaded that this was designed to, or did in fact, mislead the defendant in any way . This is in the context where the defendant was on notice from as early as 7 December 2021 that the Flutterbies property and the Bank Building propert y had been sold when the plaintiff ’ s real estate agent advised that contracts had been issued and a deposit had been paid for the Tyalgum portfolio, which was confirmed again on 10 December 2021 when Mr Small referred to his understanding that the sale had taken place . Further, and to the extent that the defendant intends to suggest that confirmation of exchanged sale contracts and completion dates at an earlier time was a material factor that would have caused the defendant to alter its position, I reject that submission . Such a submission makes little sense given the defendant chose to lodge the Caveat after being advised on 7 and 10 December 2021 about the sale of the Tyalgum portfolio, having presumably formed the view that a Caveat would impede the plaintiff ’ s future dealings with the properties, including under the announced sale process . I also do not accept the defendant ’ s submission that the plaintiff ’ s choice not to use the caveat lapsing process under s 74J of the RP Act caused unnecessary litigation and expense in this case . Section 74J may provide a convenient starting point for the removal process but there is no requirement under the RP Act for that process to be utilised in place of an application under s 74MA . In any event, irrespective of whether the plaintiff utilised a caveat lapsing process or made an application for withdrawal pursuant to s 74MA of the RP Act , the onus remained on the defendant to establish the existence of a proprietary interest in the properties and a proper basis for maintaining the Caveat, which it failed to do in this case . As the plaintiff submits, it was the defendant ’ s conduct in lodging the Caveat and refusing to withdraw it that caused the plaintiff to commence these proceedings . It follows, in my view, that making an order for the defendant to pay the plaintiff ’ s costs in this matter would not be unreasonable or unfair. As to the plaintiff ’ s claim for indemnity costs, there is no dispute that the 9 February letter was expressed to be made in accordance with the Calderbank principles and was not accepted by the defendant in the sense that the defendant did not agree to withdraw the Caveat as requested by 4 .00 pm that day or at all . As the principles referred to above make clear, the question on this application is whether the defendant ’ s failure to withdraw the Caveat in the face of the 9 February letter warrants departure from the ordinary rule that costs are payable on an ordinary basis because, in all the circumstances, it was unreasonable for it to not accept the offer, with the onus being on the defendant to demonstrate that matter: Hunter v Roberts (No 2) [2019] NSWCA 235 at [6] ; and Miwa v Siantan Properties at [16]. The defendant says that it was not unreasonable for it not to have withdrawn the Caveat after receipt of the 9 February letter as the letter was sent one day prior to the commencement of the proceedings and without any substantive material being provided to the defendant as to the assertions contained in the letter . It submits that it did not have reasonable time to contemplate the offer or the comparative strengths or weaknesses of each party ’ s case and it was impossible for the defendant to understand the case against it and/or the factors favouring the plaintiff at the time the offer was made, noting that the defendant had been actively seeking the information that the plaintiff relied on in its s ummons for the duration of its communications with the plaintiff and the correspondence of 22 and 24 December 2021 failed to disclose any urgent basis on which the plaintiff required the C aveat to be removed. Having considered the parties ’ submissions, I am not persuaded that an indemnity costs order in favour of the plaintiff is warranted in the circumstances of this case . This is primarily for the reason that I do not consider that it was unreasonable for the defendant to reject an offer that required it to confirm that the Caveat would be withdrawn within a period of some hours . The defendant may have been on notice from December 2021 that the plaintiff did not accept that the defendant had established a caveatable interest in the properties and might apply to remove the Caveat, however, the 9 February letter was the first occasion on which the bases of the plaintiff ’ s contentions were fully explained, including the reasons for the urgency of the application by reference to the 16 February completion date of the sale contracts . Considered in that context, it seems fair to say that the letter contained matters that may have been of surprise to the defendant in respect of which further consideration was required and that the plaintiff has not established that it was objectively unreasonable for the defendant to have refused to remove the Caveat within the timeframe specified in the Calderbank letter . For these reasons I make the following order: The defendant to pay the plaintiff ’ s costs on an ordinary basis as agreed or assessed . ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 August 2023