Brand v Brand - [2019] NSWSC 1754

Supreme Court

New South Wales

Medium Neutral Citation: Brand v Brand [2019] NSWSC 1754
Hearing dates: On the papers
Date of orders: 09 December 2019
Decision date: 09 December 2019
Jurisdiction: Equity
Before: Darke J
Decision:
Order that each party pay its own costs of the proceedings.

Catchwords: COSTS – proceedings resolved without a determination on the merits – where plaintiff and defendant registered proprietors and mortgagors of property – plaintiff and defendant enter into agreement whereby the defendant agreed to pay a sum to the plaintiff in return for a transfer of the plaintiff’s interest in the property – dispute as to whether the defendant paid all of the amount owing to the plaintiff under the agreement – where plaintiff commenced proceedings seeking appointment of trustees for sale in respect of the property – where proceedings resolved – whether plaintiff or defendant acted unreasonably in the commencement and maintenance of proceedings – neither party held to have acted unreasonably – orders made that each party pay its own costs
Legislation Cited: Conveyancing Act 1919 (NSW), s 66G
Cases Cited: Calderbank v Calderbank [1976] Fam 93
Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411
Luo v Carbone [2019] NSWSC 830
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622
Category: Costs
Parties: Matilda Somprathana Brand (Plaintiff)
Christopher Kodi Brand (Defendant)
Representation:
Counsel:
Ms L Nurpuri (Plaintiff)
Solicitors:
Legal AU Pty Ltd (Plaintiff)

File Number(s): 2019/229500
Publication restriction: None

Judgment

Introduction

By a Summons filed on 24 July 2019, the plaintiff sought orders pursuant to s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale in respect of a property in Bensville, of which the plaintiff and defendant were registered proprietors. The property was the matrimonial home of the parties who were married at the time of the acquisition of the property. The parties have since divorced. The defendant remains in sole occupation of the property.
The plaintiff sought relief under s 66G in part to extricate herself from a mortgage which was registered on the title to the property. Relief was also sought in part due to an alleged failure by the defendant to make full and final payment pursuant to an agreement made in January 2017 whereby the defendant agreed to pay a sum in exchange for the plaintiff’s interest in the property. Throughout the proceedings, the plaintiff was represented by solicitors. Although the defendant was represented by solicitors for a time, he has appeared for himself for much of the proceedings.
On 1 November 2019, the Court was informed that the matter had resolved. The parties, however, disagreed on the question of costs. Both parties contend that the other should pay their costs of the proceedings. The Court subsequently made orders for the parties to serve and provide affidavits in support of their respective applications as well as written submissions, with a…

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 Brand v Brand

Details

AGLC: Brand v Brand [2019] NSWSC 1754
Case: [2019] NSWSC 1754
Decision Date: 09 December 2019

CaseChat Overview and Summary

In the matter of Brand v Brand, the dispute involved the parties, who were both registered proprietors and mortgagors of a property. The disagreement centred on whether the defendant had paid the full amount owed to the plaintiff under an agreement. The plaintiff had initiated proceedings seeking the appointment of trustees for the sale of the property. The case was ultimately resolved without a determination on the merits. The court was tasked with determining whether either party had acted unreasonably in initiating and maintaining the proceedings.

The court considered the conduct of both parties in light of the circumstances that led to the resolution of the proceedings. It assessed whether either party's actions were unreasonable in the context of the agreement and the resolution of the dispute. The court found that neither party had acted unreasonably in the commencement and maintenance of the proceedings, given the context and the resolution achieved.

Consequently, the court made orders that each party bear its own costs. The decision underscored the importance of assessing the reasonableness of parties' conduct in the resolution of disputes, particularly when proceedings are resolved without a determination on the merits. The court's ruling highlighted that neither party should be penalised with costs due to the nature of the resolution.

Orders