Brereton v Higgins

CITATION:	Brereton v Higgins [2004] NSWCA 48
HEARING DATE(S):	1 March 2004
JUDGMENT DATE:	1 March 2004
JUDGMENT OF:	Giles JA at 1; Stein AJA at 31; Campbell J at 33
DECISION:	Leave to appeal refused. No order as to costs.
CATCHWORDS:	Costs - discontinuance on basis that each party paid his or her own costs - whether error of principle in the exercise of discretion - no question of principle. ND
CASES CITED:	Brimaud v Honeysett Instant Print Pty Ltd, McLelland J, 19 September 1988, unreported; Covell Matthews & Partners v French Wools Ltd (1977) 2 All ER 591; House v the King (1936) 55 CLR 499; McNamara v Shepherd, Bryson J, 15 March 1991, unreported; National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315; Nominal Defendant v Manning (2000) 55 NSWLR 139;
PARTIES :	Christine Brereton - Claimant Gordon Clement Higgins - Opponent
FILE NUMBER(S):	CA 40433/03
COUNSEL:	A Fernon - Claimant Opponent in person
SOLICITORS:	Sutherland & Tiirikainen, Camberra - Claimant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 129/01
LOWER COURT JUDICIAL OFFICER :	Gibson DCJ

CA 40433/03
DC 129/01

GILES JA
STEIN AJA
CAMPBELL J

Monday 1 March 2004

BRERETON v HIGGINS

Judgment

1 GILES JA: We have come to the conclusion that leave to appeal should be refused. Normally on leave applications the reasons given when an application is refused are quite brief. In the circumstances of this case my own reasons, which I will now give, are perhaps longer than normal. It is I think appropriate in the rather unusual circumstances of this case.

2 The opponent was the plaintiff/cross-defendant and the claimant was the defendant/cross-claimant in proceedings in the District Court. On 6 May 2003 Gibson DCJ gave leave to discontinue the claim and the cross-claim and ordered that the parties each pay his or her own costs. This is an application for leave to appeal so far as her Honour declined to order that the opponent pay the claimant’s costs of the claim. It has been heard as an appeal so that, if leave to appeal be granted, a further hearing will not be necessary.

3 The background can be briefly stated.

4 The opponent and the claimant lived in a de facto relationship from mid-1996 to mid 1999. Their parting was not amicable, and there was hostility which was manifested amongst other ways in litigation.

5 On 8 May 2001 the opponent brought proceedings against the claimant for an adjustment of property in his favour under the Property (Relationships) Act 1984 and for the return of some tools and equipment. In the amended statement of claim filed on 23 August 2001 the claim to return of the tools and equipment was deleted. The adjustment sought payment of $250,000, which may have been the jurisdictional limit or may have represented someone’s genuine assessment. The opponent relied principally upon his contribution to the development, manufacture and marketing of an agricultural implement called the Echidna, as to…