CJL v JMG

[2007] QSC 179

[2007] QSC 179

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

No BS6969 of 2004

CJL	Applicant
and
JMG	Respondent

BRISBANE

..DATE 12/07/2007

ORDER

HER HONOUR: The applicant in these proceedings has sought her costs. The rules as to costs in proceedings of this type are set out in section 341 of the Property Law Act 1974 which provides:
(1)  A party to a proceeding under this part bears the party's

own costs;

(2)  However, if the court is satisfied there are

circumstances justifying it making an order, it may make any order for costs or security for costs it considers appropriate;

(3)  The Court may make an order at any stage of the

proceeding or after the proceeding ends;

(4)  In considering whether there are circumstances justifying

it making an order, the Court must consider the following matters-
(a)  the income, property and financial resources of

each of the parties;

(b)  whether any party has legal aid and the terms of the

legal aid;

(c)  the conduct of each of the parties in relation to

the proceeding including, for example, conduct about pleadings, particulars, disclosure, inspection, interrogatories, admissions of fact and production of documents;

(d)  whether the proceeding results from a party's

failure to comply with a previous order made under this part;

(e)  whether any party has been wholly unsuccessful in

the proceeding;

(f)  whether any party made an offer to settle under

the Uniform Civil Procedure Rules 1999 and the terms of the offer; and

(g)  any fact or circumstance the Court considers the

justice of the case requires to be taken into account.

Like many sections of Part 19 of the Property Law Act this is similar to a provision of the Family Law Act, in this case section 117.

The general rule is, of course, that a party to the proceeding under Part 19 bears the party's own costs, however section 341 makes it perfectly clear that if there are circumstances justifying the making of an order for costs and the Court is satisfied of those circumstances then the Court may make any order it considers appropriate.

Subsection (4) of section 341 sets out a number of matters to which the Court is required to have regard. The first thing is the income, property and financial resources of each of the parties. As the reasons for judgment have shown there is huge disparity between the income, property and financial resources of each of the parties and the applicant has been required to conduct this litigation without any access to the financial resources which have been available to the respondent. She has not had legal aid and neither has the respondent.

The next matter to consider is the conduct of each of the parties in relation to the proceeding.  Unfortunately the respondent's conduct of these proceedings has been less than exemplary.  He has not complied with orders.  I should say immediately that I do not at all criticise the conduct of his solicitors.  It was clear in the witness box that it was his own doing that he did not comply with the orders and he was not able to give any explanation for his behaviour.  I formed the conclusion that he conducted the proceedings in such a way to frustrate the legitimate interests of the applicant and that that prolonged the proceedings and in both the interlocutory stage and at trial.

That is also relevant to the matter that I am required to consider under subsection (4)(d). 

The question in subsection (4)(e) is whether any party has been wholly unsuccessful in the proceeding. Without these proceedings the applicant would not have been successful in receiving a financial settlement. She in fact made an offer to settle under the Uniform Civil Procedure Rules. That offer is before me and was made very early in the proceedings. On 29 June 2005 she offered to settle the proceedings on the basis that the defendant pay her the sum of $780,000 and that these proceedings be discontinued with each party bearing its own costs. That offer was not accepted and she has achieved considerably more than that in the litigation.

In those circumstances, in my view, this is an appropriate case for the respondent to pay the applicant's costs and I so order.

So the orders will be:
...

HER HONOUR:  1.    that the defendant make payment to the

plaintiff of the sum of $1,137,741 by 30 August 2007;

1. failing payment by 30 August 2007 Peter Sheahy,

   Solicitor, or if he be unable or unwilling to accept appointment, a nominee of the President of the Queensland Law Society be appointed trustee to sell:
   (a)  4612 The Parkway, Hope Island, more particularly

   known as Lot 6 on Group Title Plan 1701 County of Ward Parish of Coomera as contained in Title Reference 17053025 ("the Sanctuary Cove property"); and

   (b)  6 Ereton Drive, Arundel, more particularly known as

   Lot 2 on Registered Plan 180609 County of Ward Parish of Barrow as contained in Title Reference 16545023.

2. Upon sale of the properties the gross sale proceeds are

   to be applied in the following order and manner:

(1)  real estate commission and auctioneers costs

and costs of the trustee for sale associated with the sale of the properties;

(2)  arrears of rates and land tax relating to the

properties if any;

(3)  legal costs relating to the sale of the properties;

and

(4)  payment of the adjustment sum of $1,137,741 to the

applicant.

(5)each party be at liberty to make an offer to purchase the properties;

1. the respondent pay the applicant's costs of and

   incidental to the proceedings.

...

...

‑‑‑‑‑