Costs of all parties be paid out of the proceeds of sale
Catchwords:
COSTS – application for sale under s66G of Conveyancing Act 1919 – whether ‘usual order’ for all costs out of proceeds appropriate – significance of conduct by one party causing delay COSTS – proceedings commenced May 2015 – negotiations 2011-2015 producing substantial costs – whether such costs to be costs of the proceedings
Law of Costs, Professor Dal Pont (Lexisnexis, Butterworth, 2013)
Category:
Costs
Parties:
Chow Kwok Chi - plaintiff Chow Kwok Chuen – first defendant Chow Kwok Ching – second defendant Jack Thomas – third defendant (submitting appearance)
Representation:
Counsel: P H Blackburn-Hart SC with Ms D Tucker – for the plaintiff S O’Brien – for the first defendant M Walton SC with M W Sneddon – for the second defendant
Solicitors: Arnold Bloch Leibler – for the plaintiff Hicksons Lawyers – for the first defendant Ashurst Australia Lawyers – for the second defendant
File Number(s):
2015/129833
Judgment
On 1 September 2015 I gave reasons dealing with the principal disputes between three brothers over some jointly owned property that they had inherited from their mother (see [2015] NSWSC 1347).
That judgment was given ex tempore. However the question as to who should pay the costs was complicated. I reserved my decision, accepted supplementary submissions in writing and these reasons now deal with that question which was called ‘Item (C)’ in the previous judgment.
The combatants are three brothers. Their attitudes to costs differ. The plaintiff says that he was successful in the proceedings and he got what he proposed and accordingly he should get his costs on the general principle that he or she wins gets costs, he or she loses pays costs. I will deal with that argument on a more technical basis shortly. The first defendant adopts the submissions of the second defendant that the ‘usual order’ in these cases should be made, that is, the costs of all parties are borne out of the proceeds of sale.…
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.
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Details
AGLC
Chow v Chow (No 2) [2015] NSWSC 1348
Case
[2015] NSWSC 1348
Decision Date
CaseChat Overview and Summary
The case of Chow v Chow involved a dispute between family members over the sale of a property, following a court decision to order the sale. The nature of the dispute was centred on the allocation of costs associated with the sale and the proceedings. The matter was before the Supreme Court of New South Wales.
The legal issues the court was required to decide included whether the usual order for all costs to be paid out of the proceeds of the sale was appropriate, and if the conduct of one party causing a delay should be taken into account when determining costs. Additionally, the court needed to determine whether the substantial costs incurred during negotiations from 2011 to 2015 should be considered as part of the costs of the proceedings.
The court held that the usual order for all costs to be paid out of the proceeds of the sale was appropriate, but the conduct of one party causing a delay was a significant factor to consider. The court found that the substantial costs incurred during the negotiations were not to be considered as part of the costs of the proceedings, as they were incurred prior to the commencement of the proceedings. The court carefully considered the evidence and arguments presented by both parties before reaching its decision.
The court's final orders reflected its reasoning, determining the appropriate allocation of costs and making clear the parameters for future proceedings in similar cases. The court ordered that the costs of the sale and the proceedings were to be paid out of the proceeds, but with adjustments to account for the delay caused by one party. The court also ruled that the substantial costs incurred during negotiations were not to be considered as part of the costs of the proceedings.