Legal Research
Cases
Ashwood v Ashwood

Ashwood v Ashwood

Case [2023] NSWSC 208 13 March 2023

Costs

Interlocutory Orders

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ashwood v Ashwood [2023] NSWSC 208
Hearing dates: 26, 27 and 28 September 2022
Date of orders: 30 September 2022;
Decision date: 13 March 2023
Jurisdiction: Equity
Before: Parker J
Decision:
See [118]-[120]

Catchwords:
COSTS – party/party – costs orders in interlocutory proceedings – order for payment of lump sum on account of costs liability – where discrete issue determined and remaining claims require reconsideration in a fundamental way

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 60
Conveyancing Act 1919 (NSW), s 66G
Uniform Civil Procedure Rules 2005 (NSW), rr 6.8(1)(b), 42.7

Cases Cited:
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Bell Wholesale Co Ltd v Gates Export Corp (1984) 2 FCR 1
Cameron v Ofria [2007] NSWCA 37
Fiduciary v Morningstar (2002) 55 NSWLR 1
Hargood v OHTL Public Company Ltd (No 2) [2015] NSWSC 511
In the matter of Elsmore Resources Ltd [2014] NSWSC 1390
Longjing Pty Ltd v Perpetual Nominees Ltd [2017] NSWSC 1690
Muschinski v Dodds (1985) 160 CLR 583
Ohn v Walton (1995) 36 NSWLR 77 at 79
Omutta Pty Ltd v Wilson (No 2) [2019] NSWSC 401
Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 2) [2010] FCA 1347
Rafferty v Time 2000 West Pty Limited (No 3) [2009] FCA 727
Rhino Rack Australia Pty Ltd v Hub Computing Services Pty Ltd [2021] NSWSC 231
Royal Australian Naval Reserve Rifle Club Inc v New South Wales Rifle Association Inc [2010] NSWSC 351
Salmon v Albarran (No 3) [2021] NSWSC 1200

Category: Costs
Parties:
Sheridyn Ashwood (First Plaintiff)
Ashwood Park Equestrian Pty Limited (Second Plaintiff)
Gibsons at Gosford Pty Limited (Third Plaintiff)
Terrence John Ashwood (First Defendant)
Lesley May Ashwood (Second Defendant)
Blakarn Pty Limited (Third Defendant)
Manns Development Pty Limited (Fourth Defendant)
Terence John Ashwood (First Cross-claimant)
Lesley May Ashwood (Second Cross-claimant)
Sheridyn Ashwood (First Cross-defendant)
Ashwood Park Equestrian Pty Limited (Second Cross-defendant)
Brian James Knodler (Third Cross-defendant)
Representation:
Counsel:
VRW Gray (Plaintiffs/Cross-Defendants)
GA Sirtes SC/S Baron Levi (Defendants/Cross-Claimants)
Solicitors:
Somerset Ryckmans (Plaintiffs/Cross-Defendants)
Woods & Day (Defendants)

File Number(s): 2021/233848
Publication restriction: Nil

Judgment

On 26 September last year, I began hearing an expedited trial of some of the claims in these proceedings. Those expedited claims centred on a rural property at Lambs Valley near Maitland which is owned by the defendants. Both the defendants and the first plaintiff were living there (in separate buildings). The first and second plaintiffs claimed an entitlement to ownership of, or to an indefinite leasehold interest in, the property. This was resisted by the defendants who cross-claimed for possession.
In the end, the expedited hearing never properly got under way. The plaintiffs accepted that although they might be entitled to some interest in the property by way of equitable charge, they could not justify a claim for full ownership or an indefinite leasehold interest.
The plaintiffs also accepted that they needed to reinstate, and join as an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ashwood v Ashwood

Details

AGLC: Ashwood v Ashwood [2023] NSWSC 208
Case: [2023] NSWSC 208
Decision Date: 13 March 2023

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Ashwood v Ashwood was heard. The dispute between the parties involved a determination of costs in the context of an interlocutory proceeding. The central issue was whether a lump sum payment should be ordered for a party's costs liability when a discrete issue had been resolved but other claims required fundamental reconsideration. The court was required to balance the need for a just resolution of the immediate issue against the overarching context of the proceedings.

The legal issues centred on the appropriate approach to costs in interlocutory proceedings, particularly when a discrete issue has been decided but further claims need to be fundamentally reconsidered. The court had to determine whether the resolution of the specific issue warranted an immediate costs order or if such an order should be deferred pending further developments in the case. The court considered precedent and the principles governing costs in family law proceedings, particularly in relation to the discretionary nature of costs orders.

The court reasoned that while the specific issue had been resolved, the overarching proceedings required reconsideration in a fundamental way. The court noted that it was not appropriate to make a final determination of costs at this stage, as the resolution of the discrete issue did not encompass the entire scope of the litigation. Instead, the court opted for a more balanced approach, ordering a lump sum payment on account of costs liability to reflect the work already completed, while reserving the right to revisit the costs issue in the future. This approach allowed for an immediate partial resolution of costs without prejudicing the final determination.

The final orders included a lump sum payment on account of costs liability for the work completed on the resolved issue. The court emphasised that this payment was provisional and subject to adjustment once the broader issues in the proceedings had been addressed. The court's decision provided clarity on the interim costs arrangements while maintaining flexibility to address the full scope of the case as it progressed.

Orders