AMA v KCD

[2007] QSC 310

SUPREME COURT OF QUEENSLAND

CITATION:

AMA v KCD & Ors [2007] QSC 310

PARTIES:

AMA
(applicant)
v
KCD
(first respondent)

S AS TRUSTEE FOR THE S HOLDINGS TRUST
(second respondent)
KCD AS TRUSTEE FOR THE C DISCRETIONARY TRUST
(third respondent)
S AS TRUSTEE FOR THE S INVESTMENT TRUST
(fourth respondent)

FILE NO:

BS 10180/06

DIVISION:

Trial Division

PROCEEDING:

Application – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 26 October 2007

Further Order delivered 2 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

Written Submissions

JUDGE:

Mackenzie J

ORDER:

1.  The orders in the draft orders relating to costs are confirmed and made

2.  By consent, the order initialled by me and placed with the papers on 26 October 2007 is amended as follows:

(a)   by replacing the word “elation” in paragraph 5 with the word “relation”;

(b)   by adding in paragraph 6 after the word “residence”, the words “(referred to in Schedule ‘A’ hereto)”;

(c)    by adding in paragraph 7 (b) after the word “property” where it first appears, the words “(referred to in Schedule ‘A’ hereto)”;

(d)   by adding a Schedule ‘A’ to the order

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – where respondent unsuccessful in application relating to offer to settle by the applicant – where Property Law Act (Qld) s 341 states that parties should bear their own costs – where application of different nature to a division of assets – where respondent submits there should be no order as to costs – whether the applicant should bear own costs of the application

Property Law Act 1974 (Qld) Part 19, s 341

AMA v KCD & Ors [2007] QSC 304

COUNSEL:

T Sullivan for the applicant

G Beacham for the respondent

SOLICITORS:

Hopgood Ganim Lawyers for the applicant

Jones Mitchell Lawyers for the respondent

1. MACKENZIE J:  When judgment was delivered in this matter, I gave liberty to the respondent to make submissions in writing that I should not order costs against him, as the reasons for judgment had provided.

1. Section 341 of the Property Law Act 1974 (Qld) provides a general prescription that a party to a proceeding under Part 19 of the Act bears his or her own costs. That may be departed from if the court is satisfied that there are circumstances justifying a different order. Section 341(4) sets out matters to be considered when an order for costs against a party is being contemplated.

1. As the reasons for judgment show ([2007] QSC 304), the issue was whether a formal offer to settle on behalf of the applicant had been accepted, or, alternatively, the claims had been compromised, on the one hand, or whether there had been no concluded agreement, on the other.

1. The respondent submitted that there should be no order as to costs in respect of the applications filed on 14 September 2007 and 5 October 2007, for four reasons.  The first was the prima facie position under s 341(1). The second was that the compromise found to have been made provided for each party to bear their own costs of and incidental to the proceedings. The third was that it was not suggested that the respondent’s position was unarguable or unreasonable. Finally, the size of the settlement sum was such that it was not unjust for the applicant to bear her own costs of the application.

1. The last mentioned matter is not of great weight.  It may be accepted that there were issues that were fairly arguable, but they were ultimately determined against the respondent, in whole.  It is easy enough to understand why, where proceedings concern a pool of assets over which there is a contest, the costs of each party should be borne by that party.  The issue in this application was of a different character.  It was whether the parties had reached a binding agreement to settle the division of the property.  There is no reason in principle why a party who unsuccessfully contends that there was no such agreement should not bear the additional costs to which the successful party has been put in establishing that such an agreement was made.  The acceptance in the agreement of the principle that each party should bear their own costs did not have in contemplation that there may subsequently be a contention that there was no binding agreement. 

1. For these reasons, the orders in the draft orders relating to costs are confirmed and made.