Burton v Prior (No 2) - [2019] NSWSC 1431

Supreme Court

New South Wales

Medium Neutral Citation: Burton v Prior (No 2) [2019] NSWSC 1431
Hearing dates: On the papers: written submissions 30 August 2019, 30 September 2019, 16 October 2019 and 18 October 2019
Date of orders: 21 October 2019
Decision date: 21 October 2019
Jurisdiction: Equity
Before: Kunc J
Decision:
Defendant to pay two-thirds of the plaintiff’s costs of the proceedings

Catchwords: COSTS — party/party – general rule that costs follow the event – application of the rule and discretion – each party enjoys a measure of success – no issue of principle
Legislation Cited: Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Property (Relationships) Act 1984 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Burton v Prior [2019] NSWSC 518
Calderbank v Calderbank [1975] 3 All ER 333
Calverley v Green [1984] HCA 81; (1984) 155 CLR 242
Category: Costs
Parties: Marea Therese Burton (Plaintiff)
John David Prior (Defendant)
Representation:
Counsel:

K J Young (Plaintiff)
P Abdiel (Defendant)

Solicitors:
Stratos Lawyers Pty Ltd (Plaintiff)
John de Mestre & Co Pty Ltd (Defendant)

File Number(s): 2014/267512
Publication restriction: No

Judgment

Summary

I delivered the principal judgment in these proceedings on 8 May 2019: Burton v Prior [2019] NSWSC 518 (the “Principal Judgment”). This judgment determines the question of costs and must be read with the Principal Judgment. Defined terms in the Principal Judgment have the same meaning in these reasons.
I observed at the outset of the Principal Judgment that “almost everything … has been put in issue in the bitter dispute between” Marea and John. With the exception of having agreed that costs be resolved on the papers, this remains the case in relation to costs. Their submissions as what costs orders should be made are diametrically opposed.
Marea has been vindicated in these proceedings in that the Court has found, despite John’s vigorous assertions to the contrary until the last day of the hearing, that Marea does have an interest in the Property, albeit 15.97% instead of the 50% for which she contended. She has obtained an order for the sale of the Property, which at least for some part of the history of these proceedings was also resisted by John. However, she has failed in what was, in effect if not name, a cross-claim, that if the Court was not satisfied she had a 50% interest in the Property, that interest should be awarded to her by an adjustment under the PRA (or on other bases which it is not necessary to repeat in detail).
Given the bitter and protracted litigious history between these parties and the difficulties that would inevitably arise on assessment, it would be completely undesirable for costs orders to be made in favour of both Marea and John which attempted to reflect their respective success in the proceedings. A just outcome is to treat Marea as the principal victor in the proceedings but to reduce the proportion of her costs for which John will be liable to…

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 Burton v Prior (No 2)

Details

AGLC: Burton v Prior (No 2) [2019] NSWSC 1431
Case: [2019] NSWSC 1431
Decision Date: 21 October 2019

CaseChat Overview and Summary

Burton and Prior were involved in a dispute that was heard by the Federal Court of Australia. The case revolved around the determination of costs, specifically whether the general rule that costs follow the event should be applied, and the exercise of discretion in such matters. Each party claimed a measure of success in the proceedings, thereby complicating the usual straightforward application of the rule.

The court was tasked with resolving the legal issues surrounding the application of the general rule that costs follow the event. It was necessary to consider whether the discretion should be exercised in light of each party achieving some degree of success and whether this situation warranted any deviation from the standard approach to costs.

In its decision, the court emphasised that while the general rule is that costs follow the event, this does not preclude the exercise of discretion in appropriate circumstances. The court found that since both parties had achieved some success, the usual rule could not be applied rigidly. Instead, the court recognised that each party had partial success, which justified a more nuanced approach to the allocation of costs. The court concluded that there was no issue of principle that would require it to depart from the usual practice, but it retained the discretion to make an appropriate order regarding costs, taking into account the overall circumstances of the case.

The final orders reflected the court’s findings, mandating a proportionate allocation of costs between the parties, recognising their respective measures of success.

Orders