Bowen v Simpson

[2008] NSWDC 323

CITATION:	Bowen v Simpson [2008] NSWDC 323
HEARING DATE(S):	16-18 December 2008
EX TEMPORE JUDGMENT DATE:	18 December 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1 Orders in accordance with Short Minutes drawn up by parties. 2 On the plaintiff’s claim the plaintiff is to pay the defendant’s costs. 3 On the cross claim each party is to pay their own costs.
CATCHWORDS:	PROPERTY (RELATIONSHIPS) Act - assessment of contributions - credit - overstatement
LEGISLATION CITED:	Property (Relationships) Act 1984
PARTIES:	Sharon Bowen - Plaintiff Stuart Simpson - Defendant
FILE NUMBER(S):	Coffs Harbour 7/08
COUNSEL:	S E Loomes - Plaintiff P J Davies - Defendant
SOLICITORS:	Fishburn Watson O'Brien - Plaintiff Robson & Oliver - Defendant

JUDGMENT

1 These proceedings involved an application by the plaintiff and a counter application by the defendant for an adjustment of property interests pursuant to the Property (Relationships) Act 1984. The proceedings arise out of a de-facto relationship between the parties that extended from 1993 to 2006. There were no children of the relationship. It has been agreed between the parties that the value of their assets at the time of separation were as set out in exhibit 3 and I have been asked to apply an adjustment on the basis of the values of the assets at the time of separation.

2 The areas of dispute related to both the financial and non-financial contributions of the parties during the course of the relationship. In dealing with financial contributions it was clear that the plaintiff’s claims were overstated. Her claim concerning the value of the asset at Jean Street, Coffs Harbour at commencement of the relationship was overstated. She claimed savings of $10,000 but could not substantiate those savings. Given the view that I took of her credit I was not prepared to accept that those savings represented the balance of substantial accrued holiday pay after she had spent three months in the USA without income.

3 The plaintiff claimed to have paid all the expenses incurred by the parties during the relationship. Those expenses including mortgage payments, outgoings on the properties involved, insurances, car expenses, and food and day to day expenses. They were obviously overstated since they exceeded the amount that she received in income. I decided therefore that she was not a witness whose evidence could be relied upon.

4 I therefore accepted the contributions as put forward by the defendant and I find as follows:

1 The contributions at the time of commencement of the relationship were approximately equal.

2 In addition to the $35,000 applied to the mortgage at Jean Street at the commencement of the relationship the defendant contributed the proceeds of the inheritance from his mother’s estate in the amount of $43,272.50.

3 There was no reliable evidence to indicate what in fact happened to the final distribution of $6,002 and I have therefore not taken it into account.

4 The proceeds of the poker machine win at the commencement of the relationship was shared equally between the parties in the sum of $7,700 and it appeared from the evidence that those proceeds were generally applied by each party towards their travels around Australia at that time.

5 The defendant’s income when his tax free pension and allowance were taken into account was greater than that of the plaintiff.

6 The plaintiff’s non-financial contributions as the provider of the majority of the domestic services required in the course of the relationship were greater than those of the defendant. Further it was agreed that she managed all of the couple’s finances including those of the defendant’s business.

5 The plaintiff sought an adjustment initially on the basis that she retained 75 per cent of the pool of assets. She subsequently adjusted her position to 65 per cent and then to 50 per cent. The defendant maintained that an adjustment should be made in his favour of 60 per cent. It will be apparent from my summary of the various contributions of the parties that although the defendant contributed a greater sum in terms of financial contributions the plaintiff equalised the position in terms of non-financial contributions and I have concluded therefore that the plaintiff’s final position was the appropriate one, namely that an adjustment should be made as to 50 per cent to the plaintiff and fifty per cent to the defendant.

STOOD IN THE LIST TO ALLOW PARTIES TO PREPARE ORDERS THAT WILL GIVE EFFECT TO THESE REASONS.

6 In this matter reasons for Judgment were delivered earlier today and the proceedings adjourned to allow the parties to provide the court with orders reflecting those reasons and to deal with issues of costs. The parties have agreed upon the form of order that will give effect to the findings in the reasons.

7 I have heard argument concerning costs. The defendant asks for costs of the proceedings on an ordinary basis up to and including 18 August 2008, that being the date upon which an offer of compromise was served upon the plaintiff. I was informed that the effect of the offer of compromise was that the defendant agreed to accept 48.5 per cent of the assets as they were understood to be at the time of the offer of compromise. My finding was that the assets of the parties be adjusted on the basis of 50 per cent to each party.

8 I am not satisfied that the offer of compromise is sufficiently adequate to qualify it for the orders sought. It is not possible in my view from the terms of that offer to calculate precisely what the offer related to and indeed during the course of argument on costs the parties continued to argue as to precisely what the offer of compromise entailed. In those circumstances I will not be making any award of indemnity costs. The question is whether the defendant should have the costs of the proceedings.

9 Neither party obtained the outcome from the proceedings that they had contended for in their pleadings or at the commencement of the hearing. The defendant sought an adjustment on the basis of a 60-40 split in his favour. The plaintiff asked 65-75 per cent in her favour. I am advised today that the figure of 75 per cent was an error made by her counsel and in fact it was intended to convey that she should recover 65-70 per cent of the assets of the parties.

10 In ordinary circumstances I would regard this as a case where it might be appropriate that each party pay their own costs.

11 I have decided that in so far as the cross claim is concerned each party should pay their own costs.

12 As far as the proceedings brought by the plaintiff are concerned, the plaintiff’s position was grossly overstated to the point where, in my view, it rendered the prospects of a negotiated settlement difficult and thus generated a substantial degree of extra work and legal expense in bringing the matter through to finality. Had a realistic approach been taken then perhaps these proceedings might have been avoided all together. I appreciate that costs are not used as a weapon but rather are used as a means of compensating a party for the cost and expense of litigation. I consider it appropriate that the defendant be compensated for the cost and expense of the plaintiff’s proceedings and accordingly the plaintiff is to pay the defendant’s costs of her claim.

13 I make orders in accordance with the short minutes signed and dated the 18 December 2008 in addition to the cost orders already announced.

**********