Issa v Owens [No 2][2023] QSC 96

SUPREME COURT OF QUEENSLAND

Introduction

1. [1]
   On 24 February 2023, I delivered my principal judgment in respect of the trial of these proceedings.^[1] These further reasons should be read together with the principal judgment. I will throughout these reasons use the same defined terms from the principal judgment.
2. [2]
   Whilst the orders I made on 24 February disposed of the bulk of the proceedings, two outstanding issues remained.
3. [3]
   The first issue concerns the form of the order for payment of compensation by the State to the Purchasers, pursuant to s 188B of the LTA. In my reasons for the principal judgment, I determined that the Purchasers were entitled to compensation from the State for the deprivation of their interest in a lot, pursuant to s 188(2) of the LTA, but noted that I would hear the parties further as to the terms of the order to be made.^[2]
4. [4]
   The second issue concerns the appropriate orders to be made with respect to costs.
5. [5]
   In accordance with further orders I made subsequent to the delivery of my principal judgment, I have received written submissions dealing with these issues, insofar as they are relevant to the respective parties, from each of Ms Issa, the Purchasers and the Registrar and the State. In addition, Mr Karbotli sent an email to the court and to each of the legal representatives for the parties who appeared at the trial, responding to the written submissions provided by those parties. I will treat Mr Karbotli’s email as his written submissions.
6. [6]
   Ms Issa, the Purchasers, the Registrar and the State each subsequently requested an oral hearing. On 28 April 2023, I heard oral submissions from those parties regarding the orders to be made in respect of the outstanding issues.
7. [7]
   At the conclusion of those submissions, I ordered, pursuant to s 188B(2) of the LTA, that the State pay compensation in the amount of $2,700,000 to the Eighth and Ninth Defendants.
8. [8]
   What follows are my further reasons for making the compensation order and in respect of the appropriate orders as to costs.

Compensation order

9. [9]
   The central issue in dispute with respect to the compensation order was whether it should be a ‘contingent order’.
10. [10]
    The State proposed a contingent order. That would require the Purchasers to first seek recovery of the judgment amount of $2,751,666.32 for damages for breach of contract against the Original Mortgagees, before the State would be required to pay any of the $2,700,000 in compensation to which I had determined the Purchasers were otherwise entitled.
11. [11]
    The Purchasers contended that there was no reason to make recovery of the compensation contingent upon them first pursuing and exhausting their rights of enforcement against the Original Mortgagees. 
12. [12]
    I accept the Purchasers’ argument.
13. [13]
    Pursuant to s 188B(2) of the LTA, where the court determines that a claimant is entitled to compensation from the State under s 188 of the LTA, the court may make the order it considers ‘just’. There are no prescriptive statutory criteria that the court must take into account to determine what is ‘just’. The court therefore has a broad discretion as to the appropriate order that may be made. The discretion must, of course, be exercised judicially and for the purposes for which the discretion is conferred. The determination of a ‘just’ order in any particular case will be guided by the facts and circumstances of the case, particularly the circumstances in which the entitlement to compensation arose. It will also be guided by the statutory objectives and purposes of the LTA and the compensation scheme it establishes and the legislative context within which orders for compensation may be made under pt 9, div 2, sub-div C of the LTA.
14. [14]
    Neither the statutory object of the LTA, nor the rationale for, and statutory context of, the compensation scheme suggests that a contingent order would be ‘just’ in this case.
15. [15]
    As I noted in my principal judgment, the LTA regulates the registration of freehold land and interests in freehold land in Queensland and, amongst other things, it provides for a system for registering title to, and transferring interests in, freehold land.^[3] It creates a system of title by registration, rather than a system of registration of title.^[4]
16. [16]
    Central to the system of title by registration is the concept of indefeasibility. It is the registration of an interest in a lot that confers indefeasible title.
17. [17]
    The compensation scheme under the LTA promotes the statutory object of the LTA.  It implicitly recognises the primacy of registered interests above all other interests, but also recognises that deprivation of an interest in a lot, or loss or damage, may occur because of the operation of the system of title by registration created by the LTA. Although, as the prescribed circumstances within ss 188(1) and 188A(1) of the LTA specify, such deprivation, loss or damage may be caused by some act or omission on the part of a person, it is ultimately due to the operation of the system itself that compensable deprivation, loss or damage results. The compensation scheme is, in my view, intended to relieve against unfair or unjust consequences occasioned by the State’s adoption and use of a compulsory legislative scheme for the registration and transfer of titles and interests in land in Queensland.
18. [18]
    Where, as here, due to the operation of the LTA persons have been deprived of an interest in a lot because of the fraud of another person, s 188 entitles those persons to be compensated by the State.
19. [19]
    As I also noted in the principal judgment, pursuant to s 190 of the LTA, upon payment of compensation to the Purchasers, the State will be subrogated to the rights of the Purchasers against any other person in relation to the deprivation for which the Purchasers are compensated. That will include any rights to pursue the Original Mortgagees in respect of the judgment debt they owe. I consider the existence of the State’s right of subrogation under s 190 of the LTA to be a factor that militates against the making of a contingent compensation order in this case.
20. [20]
    I do not consider the fact that the Purchasers have obtained judgment against the Original Mortgagees to be a reason that would, of itself, necessitate or justify a contingent compensation order. Further, I do not consider the fact that there is no evidence, or reason to suggest, that the original Mortgagees are insolvent or bankrupt, is a factor in favour of a contingent order.
21. [21]
    The Purchasers were successful at trial in respect of two separate causes of action pursued against separate parties. They are entitled to judgment in their favour in respect of each matter. However, they cannot execute each judgment separately so as to recover more than the total amount of their loss. The ‘universal rule’ is that a plaintiff cannot recover more than he or she has lost.^[5] The principles respecting ‘double satisfaction’ may be seen as a particular application of that rule.^[6] If the occasion arose for consideration, the court could, in the exercise of its inherent power to prevent an abuse of its process, make any order necessary to prevent ‘double satisfaction’.^[7]
22. [22]
    It is a matter for the Purchasers whether, how and to what extent they may pursue the Original Mortgagees to obtain payment of, or otherwise seek to enforce, the judgment they have obtained. Any money recovered by the Purchasers from the Original Mortgagees in satisfaction of the judgment debt owed would, of course, reduce the amount of compensation payable by the State.
23. [23]
    Irrespective of whether the Purchasers take any action to pursue the Original Mortgagees in respect of the judgment debt they now owe, they remain entitled to be compensated by the State.
24. [24]
    For those reasons, in my opinion, a contingent order would not be ‘just’ in all the circumstances.
25. [25]
    Consequently, at the conclusion of the further oral hearing and submissions on 28 April 2023, I ordered that the State was to pay compensation to the Purchasers in the amount of $2,700,000.

Costs

Principles and issues

26. [26]
    The general rule is that costs are at the discretion of the court but ‘follow the event, unless the court orders otherwise’.^[8] A successful party in litigation is ordinarily entitled to an award of costs in its favour. The primary purpose of an award of costs is to indemnify the successful party from the expense that it would not otherwise have incurred. Costs are not awarded to punish an unsuccessful party. The rationale for the general principle is grounded in reasons of fairness and policy. Fairness dictates that an unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.^[9]
27. [27]
    Nevertheless, the court has a discretion to make another order, if that is required in the interests of justice.^[10] Whilst the court’s discretion is unfettered, it must be exercised judicially, without caprice and having regard only to relevant considerations.^[11]
28. [28]
    Ms Issa succeeded in obtaining the primary relief she sought by her claim. She is therefore entitled to an order for costs in her favour. The only aspect of her claim that was unsuccessful concerned her claims for payment of compensation by the State, pursuant to ss 188A and 188B of the LTA. The State successfully defended that aspect of her claim. It was unnecessary to determine her additional claim for compensation pursuant to s 188 of the LTA.
29. [29]
    The Purchasers succeeded in their third-party claim against the Original Mortgagees for damages for breach of contract and in their third-party claim against the State for payment of compensation, pursuant to ss 188 and 188B of the LTA. They are therefore entitled to have their costs of each of those claims.
30. [30]
    The real issue in this case is not so much to do with the successful parties’ entitlement to an order for costs, but rather which unsuccessful parties should be ordered to pay those costs.
31. [31]
    Three points arise for consideration in this context: first, whether it is fair and appropriate to exempt any unsuccessful party from inclusion in any costs order in favour of a successful party; second, whether it is fair and appropriate to depart from the general rule that the liability for any costs order against unsuccessful parties is joint and several, by apportioning liability for costs; and third, whether it is fair and appropriate to make a Sanderson^[12] order requiring unsuccessful defendants to pay the costs of a successful defendant.
32. [32]
    The general principles above are relevant and applicable to my consideration of each of these points.
33. [33]
    As to the second point, the principles identified by Cooper J in Thiess Watkins White Construction Ltd (in liq) v Witan Nominees (1985) Pty Ltd are also applicable.^[13] There, Cooper J noted the general rule that an order for payment of costs by two or more persons is joint and several as between them and the payee.^[14] His Honour further observed that the general rule is not disturbed unless, and only to the extent that, one defendant conducts a separate and distinct defence which incurs costs which cannot be attributed to the joint conduct of the defendants in the defence of the action.^[15]
34. [34]
    Also relevant to the second point is the following broader statement of principle by Besanko J in Probiotic Ltd v The University of Melbourne:^[16]

…when considering the appropriate order as to costs in the case of two or more unsuccessful respondents it is appropriate to consider not only whether one respondent has put forward a separate defence but also any other factors relevant to that respondent’s conduct and the effect of that conduct on the incurring of costs by the applicant. No doubt the fact that one of two unsuccessful respondents puts forward a separate defence will remain an important consideration...

35. [35]
    As to the third point, a Sanderson order is a special type of order as to costs which may be made where a plaintiff has succeeded against some but not all defendants.  In such a case, according to the general rule that costs follow the event, the plaintiff would be entitled to an order for costs to be paid by the unsuccessful defendant but would also be liable to pay the costs of the successful defendant against whom it failed. Instead of making an order that the plaintiff pay the successful defendant’s costs, a Sanderson order may be made, requiring the unsuccessful defendant to pay the costs of the successful defendant.  A Sanderson order may be contrasted with a Bullock order,^[17] whereby the unsuccessful defendant reimburses the plaintiff for any costs the plaintiff must pay to the successful defendant.
36. [36]
    Various authorities have identified that it is generally only appropriate to make a Bullock or Sanderson order where:

    1. (a)
       it was reasonable and proper for the plaintiff to proceed against the successful defendant as well as the unsuccessful defendant; and
    2. (b)
       some conduct on the part of the unsuccessful defendant:

       1. makes it fair to impose liability on it for the costs of the successful defendant; or
       2. shows that the joinder of the successful defendant was reasonable and proper.^[18]

Submissions

37. [37]
    Ms Issa submits that she is entitled to costs against all defendants, save for the State.  She contends that each of the unsuccessful parties are responsible for her having incurred the costs of the litigation and the appropriate costs order would see each of them jointly and severally liable to pay her costs, in accordance with the general rule. Ms Issa further submits that it must be borne in mind that the rationale of fairness which underlies the general rule that costs follow the event is not a broad notion of fairness, having regard to a party’s personal circumstances. Rather, the general rule is grounded in the notion that if the litigation had not been defended by the unsuccessful party or parties, the successful party would not have incurred the costs that it did.^[19] 
38. [38]
    Ms Issa says that it would not be appropriate in the circumstances to exempt the Purchasers from such a costs order, nor to make an order that the Purchasers pay only a proportion of her costs. She argues that the Purchasers did not admit the key factual assertions of forgery and fraud in respect of the Mortgage and therefore she was required to prove those matters at trial. She further argues that, by their defence, irrespective of the position they took with respect to the alleged fraud and forgery, the Purchasers sought to divest her of her interest in the property at 30 Francis Street and that resolution of that aspect of the defence was a substantial component of the issues tried and, necessarily, the costs she has incurred.
39. [39]
    Ms Issa contends that the Registrar is an unsuccessful party against whom she has obtained relief and should therefore be included in any costs order in her favour made against the unsuccessful defendants. She argues that the Registrar and the State conducted what was, in effect, a joint defence, and the Registrar filed a defence which put her to proof on legal issues and the key factual allegations that underpinned her entitlement to the relief she obtained against the Registrar. She emphasises that the joint positions taken by the Registrar and the State continued to be maintained until the trial and that it was only in closing submissions that the Registrar identified that she would abide by the orders of the court.
40. [40]
    Ms Issa further submits that, in all the circumstances, it is appropriate that a Sanderson order be made for the unsuccessful defendants to pay the State’s costs of and incidental to her claim.
41. [41]
    The Purchasers submit that they should have their costs in respect of their third-party claims against each of the Original Mortgagees and the State. They further submit that they should not be included in any order for the unsuccessful defendants to pay Ms Issa’s costs, nor should they be included in any Sanderson order for payment of the State’s costs in respect of Ms Issa’s claim. They say they were not responsible for Ms Issa incurring costs. They submit that they too are innocent parties that have been caught up in the fraud perpetrated by Mr Karbotli. They argue that their case was, in effect, limited to legal arguments and they did not contest the fraud and forgery allegations made by Ms Issa, which she otherwise needed to prove to establish her entitlement to retain her properties in any event because of the defence that had been filed by the Mortgagees. 
42. [42]
    The Purchasers submit that the appropriate order which is fair to both parties is that there be no order as to costs as between themselves and Ms Issa. Alternatively, the Purchasers submit that if they are to pay any of Ms Issa’s costs, they should only be responsible for a proportion, being no more than 10 per cent.
43. [43]
    The Registrar and the State agree with the orders proposed by Ms Issa, save that they submit that the Registrar should be in the same position as the State and should not be ordered to pay Ms Issa’s costs. They further submit that both the Twelfth Defendant, Mr Picken, and the First Third Party, Mr Karbotli, should also be ordered to pay the costs of Ms Issa and the State.
44. [44]
    The Registrar submits such orders are appropriate in circumstances where it did not claim any interest in the subject property, where the orders made pursuant to s 187 of the LTA are not made against the Registrar but in vindication of Ms Issa’s claim against the First to Ninth Defendants, and where its position at trial was that it would abide by the order of the court.
45. [45]
    The State accepts that it should pay the costs of the Purchasers’ third-party claim against it, but it seeks a Sanderson order in its favour against the Original Mortgagees.
46. [46]
    Mr Karbotli disputes his liability for any costs incurred by any party. He does so on the basis that ‘[n]o parties to this matter have offered any evidence that I perpetrated fraud in the obtaining of this mortgage’. Mr Karbotli’s position is thus contrary to, and ignores, the findings I made based upon the cogent evidence adduced at trial.

Consideration

47. [47]
    In my opinion, it is appropriate that each of the First to Ninth Defendants, the Twelfth Defendant and the First Third Party pay Ms Issa’s costs.
48. [48]
    I do not accept that an appropriate order would exempt the Purchasers. Although the Purchasers did not contest the forgery and fraud allegations of Ms Issa’s claim, they did not admit those allegations in their defence. They also did not admit the Plaintiff’s allegations that the Original Mortgagees and Mortgagees did not obtain the benefit of indefeasibility of their interests when registering the Mortgage and the Mortgage Transfer. Further, a very significant part of the issues to be resolved at trial concerned their defence and opposition to the relief sought by Ms Issa to vindicate her indefeasible interest in the Francis Street property. They argued Ms Issa’s interest should be deferred to their own and sought an order for the registration of the Transfer.
49. [49]
    Whilst the Purchasers’ defence in this respect was largely one based on legal argument rather than factual dispute, that was not entirely the case. The Purchasers’ estoppel and priorities arguments were rooted in factual contentions pleaded in their defence. Ms Issa put those matters in issue by her reply. Evidence was adduced at trial on behalf of the Purchasers in support of their defence and I was required to make factual findings, ultimately adverse to the Purchasers’ case. Ms Issa could not succeed in obtaining the ultimate relief she sought unless she overcame the substantial and significant defence case the Purchasers presented.
50. [50]
    However, I do not consider it would be fair that the Purchasers should be jointly and severally liable with other unsuccessful defendants for the whole of Ms Issa’s costs. Although the Purchasers did not admit the Plaintiff’s essential factual assertions and sought to have Ms Issa’s interest in the property at 30 Francis Street deferred to their own, they did so in circumstances where they had no involvement in, or knowledge of, the Mortgage forgery and fraud when they entered into the Purchase Contract for the property with the Original Mortgagees. They, too, are victims of the fraud.
51. [51]
    The Purchasers’ defence was largely separate and distinct from that of the other defendants. Although the Mortgagees did not appear at trial, and they had for some time been absent as participants in the litigation, they had filed a defence in which they denied the forgery and fraud and asserted they had taken reasonable steps to verify the identity of the mortgagee. They positively maintained they held an indefeasible interest as mortgagees and asserted the legitimacy of the purported exercise by them of their power of sale.
52. [52]
    Mr Picken, the Twelfth Defendant, did not file any defence.
53. [53]
    Although not a defendant to Ms Issa’s claim, Mr Karbotli, the First Third Party, filed a defence to the State’s third-party claim against him in which he denied the fraud and any forgery of his mother’s signature and maintained that Ms Issa had knowingly and willingly signed the Mortgage. He gave evidence at trial maintaining that position.
54. [54]
    In all the circumstances, I consider it is appropriate to make an order that the Purchasers pay one-third of Ms Issa’s costs. The remaining unsuccessful parties will pay the other two-thirds of Ms Issa’s costs.
55. [55]
    I do not include the Registrar as an unsuccessful party to the costs order to be made in favour of Ms Issa. The costs incurred by the Plaintiff were not incurred because of the Registrar’s conduct of the litigation. The Registrar was a necessary party to the proceedings because of the relief sought under s 187 of the LTA, but the orders ultimately made cannot be said to be orders made against the Registrar. Rather, they are consequential orders that follow from Ms Issa succeeding in her case against the First to Ninth Defendants. Although the Registrar did not admit in her defence the key factual allegations made by Ms Issa, those were matters that Ms Issa had to prove in any event because they were put in issue by the Mortgagees and the Purchasers. From the outset of the trial, the Registrar supported Ms Issa’s position and the relief she sought.
56. [56]
    In terms of fairness and responsibility for the incurring of costs by a successful party, I do not consider that the court’s inquiry is limited simply to a party’s conduct of the litigation. In my view, proper regard may also be had to the cause of the litigation itself in determining what is fair. For that reason, I accept that it is reasonable and just that each of Mr Picken and Mr Karbotli be included in the costs orders to be made. Their combined conduct was the genesis of the unfortunate circumstances that necessitated this litigation. Further, as I have noted, Mr Karbotli denied responsibility for the fraud in his defence and in his evidence at trial.
57. [57]
    It is appropriate to make the Sanderson order sought by Ms Issa. I consider it was reasonable and proper for Ms Issa to join the State as a defendant as she claimed entitlement to be paid compensation by the State under ss 188 and 188A of the LTA. The claim under s 188 was in the alternative to the principal relief she sought and obtained and was ultimately unnecessary to consider. I also consider the conduct of the unsuccessful parties I have outlined above makes it fair to impose liability upon them for the State’s costs in defending Ms Issa’s claim. 
58. [58]
    I include within the State’s costs of defending Ms Issa’s claim the costs of the third-party claims it commenced and maintained against each of Mr Picken and Mr Karbotli. Although those claims were ultimately unnecessary to determine and were accordingly dismissed, it was reasonable and proper for the State to initiate those claims in order to seek relief against the third parties by way of indemnity, contribution or otherwise, in the event the State was ordered to pay compensation to Ms Issa. 
59. [59]
    In my view, it is appropriate to apportion liability for the State’s costs as between the unsuccessful defendants in the same way that I have determined is fair in respect of the payment of Ms Issa’s costs.
60. [60]
    As to the Purchasers’ third-party claims, there is, in my view, no reason to depart from the general rule and it is appropriate that each of the respective unsuccessful parties, the Original Mortgagees and the State, pay the Purchasers’ costs of those claims.
61. [61]
    As for the Sanderson order sought by the State in respect of the Purchasers’ third-party claim against it, I do not consider any proper basis has been shown to make such an order or to make a Bullock order. The Original Mortgagees were not a party to the Purchasers’ third-party claim and the State was not a successful defendant to that claim. Further, the State positively resisted the Purchasers’ claim for compensation on various bases.

Costs orders

62. [62]
    In respect of the outstanding question of costs, I make the following orders:

1. The First to Seventh Defendants, the Twelfth Defendant and the First Third Party pay two-thirds of the Plaintiff’s costs of and incidental to the Plaintiff’s claim on the standard basis.
2. The Eighth and Ninth Defendants pay one-third of the Plaintiff’s costs of and incidental to the Plaintiff’s claim on the standard basis.
3. The First to Seventh Defendants, the Twelfth Defendant and the First Third Party pay two-thirds of the Eleventh Defendant’s costs of and incidental to the Plaintiff’s claim on the standard basis.
4. The Eighth and Ninth Defendants pay one-third of the Eleventh Defendant’s costs of and incidental to the Plaintiff’s claim on the standard basis.
5. The First to Sixth Defendants pay the Eighth and Ninth Defendants’ costs of and incidental to the Eighth and Ninth Defendants’ third-party claim against them on the standard basis.
6. The Eleventh Defendant pay the Eighth and Ninth Defendants’ costs of and incidental to the Eighth and Ninth Defendants’ third-party claim against it on the standard basis.