IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
COMMON LAW DIVISION
Practice Court
S ECI 2024 05401

WILLIAM JAMES SERONG 	First Plaintiff	
		
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MERYN ANN SERONG 	Second Plaintiff	
		
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GLENN ANDREW COOPER	First Defendant	
		
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EK & CL TADROSS PTY LTD (ACN 645 388 978)
(trading as CLT LAWYERS)	Second Defendant	
		
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REGISTRAR OF TITLES VICTORIA	Third Defendant	

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JUDGE:	O’Meara J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	On the papers	
DATE OF JUDGMENT:	23 October 2024	
CASE MAY BE CITED AS:	Serong v Cooper & Ors	
MEDIUM NEUTRAL CITATION:	[2024] VSC 644	

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JUDGMENTS AND ORDERS – General rule that costs follow the event – Other relevant considerations – Chen v Chan [2009] VSCA 233, considered – Final orders made.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiffs	No appearance 	Robinson Gill	
			
For the Defendants	No appearance		

HIS HONOUR:
1	On 16 April 2024, a warrant of seizure and sale was registered on the title of the property located at Unit 1, 689 Nepean Highway, Carrum.  The first defendant was then the registered proprietor of the property.  The warrant was due to expire by 15 October 2024.  
2	On 11 September 2024, the property was sold to the plaintiffs at a sheriff’s auction.  A contract of sale was signed, the entire purchase price was thereafter paid and the sheriff signed the transfer form.
3	For settlement to occur, it was necessary for the party in administrative control of the electronic certificate of title to release it to the purchasers, or to the third defendant, the Registrar of Titles.
4	Administrative control of the electronic certificate of title was held by the second defendant.  That firm is the solicitor or former solicitor for the first defendant.
5	In that connection, on the day of the sheriff’s auction, the plaintiffs’ solicitor wrote to the second defendant seeking cooperation in respect of the electronic title.  
6	A solicitor of the second defendant responded that evening, confirming that the firm had sent the first defendant an authorisation that would allow control of the electronic certificate of title to be transferred to the solicitor for the plaintiffs.
7	The following day, the solicitor confirmed by further email that she had spoken with the first defendant and informed him that the property had been sold at a sheriff’s auction.  The first defendant seems to have responded that he had emailed the sheriff to say that the auction should not proceed as he was going to ‘have the [underlying] case re-opened’.  The solicitor informed him that the auction had not been postponed and that the property had sold.
8	In a further email the following day, Friday, 13 September 2024, the solicitor said, among other things, that she would endeavour to do what she could to have the first defendant sign the authorisation so that the electronic certificate of title could be transferred.
9	On Monday, 16 September 2024, the solicitor for the plaintiffs emailed the solicitor to the effect that without the authority of the first defendant to transfer control of the electronic certificate of title, it would be necessary to commence proceedings against him.  In that regard, the email advised –
Failing the above we will necessarily be in a similar position to the previous Lot, in having to commence proceedings against Mr Cooper [the first defendant] to have the title made available.  In this event, our client will incur substantial costs to obtain the title, and will necessarily rely on this correspondence and correspondence to Mr Cooper on the question of costs of the application.  
10	The reference to ‘the previous Lot’ concerns an earlier dispute between the plaintiffs and the first defendant involving a neighbouring property.  It seems that the first defendant failed to cooperate in releasing administrative control of the electronic certificate of title relating to that property, and that the late transfer of that certificate had created problems which required court proceedings to be commenced.
11	In any event, on Wednesday, 18 September 2024, the solicitor emailed the solicitor for the plaintiffs indicating that she had again spoken with the first defendant and ‘explained to him the consequences of him not signing my authority to release the title over’.  The solicitor referred to the first defendant’s ‘behaviour, to try and antagonise and torment his creditors’ and said that she had explained to him that if he did not authorise transfer of control of the electronic certificate of title, the solicitors for the plaintiffs would need to make applications which ‘at the end of the day will cost him’.  
12	The same day, the solicitors for the plaintiffs wrote to the first defendant directly, referring to the essential circumstances of the matter and indicating that –
(a)	settlement was due to occur on 24 September 2024;
(b)	unless he instructed the second defendant to release the electronic certificate of title to the solicitors for the plaintiffs by 20 September 2024, the plaintiffs would;  –
… make an application under Section 116A(3)(a) of the Transfer of Land Act 1958 (Vic), for production and/or release of the certificate of title.  
(c)	if such an application was necessary, the plaintiffs would ‘rely on this correspondence in support of an application that you pay their costs of and incidental to the proceedings’.
13	The solicitor for the plaintiffs did not receive a response to that letter, and it seems that settlement was thereafter delayed.  
14	The position seems later to have become pressing, as the warrant of seizure and sale was due to expire on Tuesday, 15 October 2024.
15	On Thursday, 10 October 2024, the plaintiffs filed an originating motion, summons and supporting affidavit.  In particular, the plaintiffs sought declaratory relief as well as an order pursuant to s 116A(3)(a) of the Transfer of Land Act 1958 (Vic).  The application was made returnable in the Practice Court on Monday, 14 October 2024.
16	The material to which I have referred was served on the first defendant personally on Friday, 11 October 2024 at 12:34pm.  Service seems to have been effected at one of the addresses to which the solicitor’s letter dated 18 September 2024 had earlier been sent.
17	The first defendant did not appear at the hearing on Monday, 14 October 2024.
18	At the hearing, counsel for the plaintiffs very properly advised that there had been ‘a development on Friday’ and explained further that –
… After serving the court documents the first defendant instructed [the second defendant] to transfer the control of the title to the Registrar of Titles.
19	Counsel explained that the transfer was ‘now pending’ and remained ‘in process’.  In that connection, he handed up a letter from the Registrar of Titles.
20	In the circumstances, counsel sought relief including a declaration that his instructors were entitled to control of the title for the purposes of settlement.
21	That relief was ordered with a view to the transfer and settlement being facilitated.  Counsel indicated the plaintiffs would seek to return to Court only if necessary.
22	In those circumstances –
(a)	counsel for the plaintiffs sought an order that the first defendant pay the costs of the proceeding;
(b)	counsel indicated, again very fairly, that the first defendant should have an opportunity to obtain advice and respond;
(c)	I indicated a tentative view that it would be appropriate to make an order that the first defendant pay the costs;
(d)	however, in the circumstances, I proposed that the first defendant be permitted to file and serve written submissions of no more than three pages in length by 4:00pm on Thursday, 17 October 2024, and that I would thereafter consider and determine the issue on the papers and make orders finally disposing of the matter.
23	The substance of the above was recorded in the orders made on 14 October 2024.
24	On Thursday, 17 October 2024 at 12:55pm, by email sent to an email address relating to the Costs Court, the first defendant wrote as follows –
I am Glen Cooper the first defendant on court proceeding SECI. 2024 05401 And I’ve received notice only yesterday Wednesday regarding the case heard on Monday Which I was never informed of and did not know it was even taking place And today regarding the plaintiffs solicitor claiming costs I advise that even prior to Mondays case being heard my previous solicitor had already transfered the title electronically back to the register if titles So there actually was no need for the case to even take place So today I refuse to be responsible for any costs related to the plaintiffs representation U will have my own costs to pay So maybe I should be seeking my costs from them simply because my representation Had to do work to prepare and send it he electronic control of the title which she will bill me for and expect payment So today. I ask that the plaintiffs claim for costs Be denied as if they were doing thier paid job they would have been aware the transfer had already taken place and there was no need for Mondays hearing So I’ll await your decision Regards Glen Cooper no.
25	At 3:11pm the same day, the first defendant sent an email to my associates to practically identical effect.
26	It will be evident that there are aspects of those submissions which are not reconcilable with other material before the Court.
27	In that regard, I do not accept that the first defendant was not informed of the proceeding and did not know that a hearing was taking place on Monday, 14 October 2024.  In that connection, I have already referred to the affidavit confirming that the first defendant was personally served on 11 October 2024 at 12:34pm.
28	Further, albeit that the electronic title had evidently been transferred to the Registrar of Titles ‘prior to Mondays (sic) case’, I do not accept that there was ‘no need for the case to even take place’.  In that regard, I have already referred to the fact that the transfer remained pending and in process at the time at which the matter came on for hearing, and that, accordingly, declaratory relief was ordered so that timely processing of the transfer and settlement might be facilitated.
29	The general rule, of course, is that absent any disqualifying conduct, costs should follow the event, even if the successful party has not succeeded on all heads of claim. 
30	As I have indicated, the plaintiffs succeeded in obtaining part of the substantive relief sought in their summons and originating motion, and no disqualifying conduct is shown.
31	More broadly, of course, it seems to have been necessary for the plaintiffs to bring the proceedings in order to achieve a transfer of the electronic title to which they were entitled.  The first defendant was advised that the proceedings would be pursued, if necessary, and costs sought, but appears to have elected to remain intransigent until the last minute (after he had been served with the Court documents relating to the proceeding).
32	It follows that, on any view, it is appropriate that the first defendant should be ordered to pay the plaintiffs’ costs of the proceeding on a standard basis to be assessed by the Costs Court in default of agreement.
33	An order will be made to that effect, and otherwise disposing of the proceeding.