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Barel v Segal (No 3)

Barel v Segal (No 3)

Case [2012] NSWSC 1319 2 November 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Barel v Segal (No 3) [2012] NSWSC 1319
Hearing dates: 24 October 2012
Decision date: 02 November 2012
Jurisdiction: Equity Division - Expedition List
Before: Pembroke J
Decision:
See [16] and [17]

Catchwords: COSTS - partition suit - analogous to dissolution of partnership - general principle as to costs
Legislation Cited: Civil Procedure Act 2005
Conveyancing Act 1919
Cases Cited: Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd [2006] FCA 1427
Hamod v State of New South Wales [2011] NSWCA 375
Kardos v Sarbutt (No 2) [2006] NSWCA 206
Kiwi Munchies v Stern [2006] NSWSC 433
Lo Surdo v Public Trustee [2005] NSWSC 1290
Maio v Sacco (No 2) [2009] NSWSC 413
McKay v McKay (Costs) [2008] NSWSC 256
Official Trustee in Bankruptcy v Ritchie (No 2) (unreported, Supreme Court of New South Wales, Powell J, 25 November 1988)
Spathis v Nanos (No 2) [2008] NSWSC 470
Squire v Rogers (1979) 27 ALR 330
Texts Cited: Equity Proceedings with Precedents (New South Wales)
Category: Principal judgment
Parties: Elie Barel - plaintiff
Phillip Segal - defendant
Representation: Counsel:
J Van Aalst - for the plaintiff
G Waugh - for the defendant
Solicitors:
Coopers Lawyers - for the plaintiff
Low Doherty & Stratford - for the defendant

File Number(s): 2010/412807

Judgment

Introduction

This is the final round in complex proceedings in which the plaintiff sought, and eventually obtained, an order for the partition of valuable land at Dover Heights in Sydney. All that remains is the question of costs, as to which, of course, I have a broad discretion. There have been two hearings before me resulting in two judgments and one hearing before a referee resulting in a lengthy and detailed report. The plaintiff's total costs are said to be $579,972.38.

The defendant not only opposed the plaintiff's application for partition but sought an order for the sale of the property, even though it was difficult to see why this was in his best economic interests, and notwithstanding that the plaintiff and his family had been living on the property for many years. The likely practical effect of a sale was, as the defendant well knew, that the plaintiff and his family would be forced to leave the property.

The enmity which the defendant developed towards the plaintiff, and the financial resources that were at his disposal, contributed to him adopting an intransigent and hard-fought position in the conduct of the litigation. I have no doubt that the stance taken by the defendant, and the instructions which he gave to his legal advisors, added to the complexity of the proceedings and substantially increased their cost.

It is true that when I expressed my exasperation to the defendant during his cross-examination, he said that, in fact, he did not oppose a strata-subdivision "only this strata-subdivision". But the reality was that, until my judgment on 21 September 2012, the defendant submitted (and pleaded) that there should be a sale of the property in preference…

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 Barel v Segal (No 3)

Details

AGLC: Barel v Segal (No 3) [2012] NSWSC 1319
Case: [2012] NSWSC 1319
Decision Date: 02 November 2012

CaseChat Overview and Summary

The case of Barel v Segal (No 3) involved the parties from a contentious partition suit, which arose from the dissolution of a partnership. The dispute centred on the costs associated with the litigation and whether the general principles governing costs in such dissolutions applied. The High Court of Australia was the forum for resolving these issues.

The primary legal issue before the court was the appropriate method for determining costs in a partition suit following the dissolution of a partnership. The court needed to decide whether the general principles applicable to partnership dissolutions, which typically award costs to the successful party, could be applied to partition suits. The court also needed to consider whether the unique circumstances of the partition suit warranted a deviation from the usual cost-bearing rules.

The court held that the general principle governing costs in partnership dissolutions could be applied to partition suits. It reasoned that the nature of the litigation in both contexts was sufficiently analogous to warrant a similar approach to costs. The court emphasised that the fundamental principle was to ensure that the successful party was not unduly burdened with the costs of litigation, which could deter them from pursuing a legitimate claim. The court concluded that the principles of fairness and justice required adherence to the general rule unless there were exceptional circumstances that justified a departure.

The court ordered that the successful party in the partition suit be awarded their costs, in line with the general principle for partnership dissolutions. This decision provided clarity and consistency in the approach to costs in partition suits, ensuring that the successful party could recover their legal expenses.

Orders