Davis v Davis (No 3)

[2024] NSWSC 125

Supreme Court

New South Wales

Medium Neutral Citation:

Davis v Davis (No 3) [2024] NSWSC 125

Hearing dates:

On the Papers

Date of orders:

22 February 2024

Decision date:

22 February 2024

Jurisdiction:

Equity

Before:

Elkaim AJ

Decision:

I decline to amend the original costs order.

Costs orders made on 15 December 2023 will remain.

Catchwords:

COSTS – party/party – application to amend costs order –exercise of discretion – where successful party abandoned monetary claim before hearing

Legislation Cited:

Property (Relationships) Act 1984 (NSW)

Cases Cited:

Davis v Davis (No 2) [2023] NSWSC 1563

Gray v Richards [No 2] [2014] HCA 47

Category:

Costs

Parties:

Paula Jane Davis (Plaintiff)
Victor Bernard Davis (Defendant)

Representation:

Counsel:
Mr A Joseph (Plaintiff)
Mr N Bilinsky (Defendant)

Solicitors:
Lindeman Lawyers (Plaintiff)
Pigott Stinson (Defendant)

File Number(s):

2021/19641

JUDGMENT

1. I gave the primary judgment in this matter on 15 December 2023 (Davis v Davis (No 2) [2023] NSWSC 1563). The plaintiff was successful both in her claim and on the cross-claim. I ordered the defendant to pay the costs of the whole of the proceedings. I also gave the parties leave "to request any amendment to the costs order."

2. The defendant has requested such an amendment. The order proposed by the defendant is that instead of the order I made, I should order "that the Plaintiff be recompensed for 50% of her costs (on the ordinary basis)."

3. The defendant has correctly submitted that "what is required is that the court should make orders as required to achieve a just result." The High Court put the exercise of the discretion in this way in Gray v Richards [No 2] [2014] HCA 47 at [2]:

"The disposition of costs is within the general discretion of the Court. Ordinarily, that discretion will be exercised so that costs are awarded to the successful party, but other factors may have a significant claim on the discretion of the Court. The disposition which is ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires."

4. The proceedings concerned a dispute between a daughter (the plaintiff) and her father (the defendant). The plaintiff sought orders under the Property (Relationships) Act 1984 (NSW). She succeeded. The defendant, through his cross-claim, primarily based on his case on his "asserted rights under a deed executed by the parties on 24 November 2005". He failed.

5. The details of the respective claims of the parties can be ascertained from the primary judgment.

6. The basis for the amendment to the costs order arises from an original request by the plaintiff that in addition to the orders she sought under the above Act she should also be paid a sum of $400,000. This claim was abandoned at the commencement of the hearing.

7. The defendant makes the point that the monetary claim was "untenable" and "had the effect of 'unfairly, improperly or unnecessarily' increasing his costs of the proceedings."

8. The fact that he had to prepare for the hearing on the basis that he was going to have to meet the claim for the $400,000 would have significantly increased his costs.

9. At first sight, the abandonment of the monetary claim at a very late stage could be seen as a basis to amend the costs order. But it has this flaw; it was always open to the defendant to resolve the claim by an offer of compromise under the court rules, or even a 'Calderbank' offer which did not include the $400,000 but did allow for the ultimate result in the case, or close to it. Such an offer could have terminated the proceedings or, had it not been accepted, given rise to very favourable costs orders in favour of the defendant.

10. The defendant clearly chose never to make such an offer. The defendant has submitted that he will need to sell the house where he lives in order to pay costs. This is said to be "an unenviable position for an 82-year-old man to have to find himself in". I agree, but circumstances of this type are frequently the result of unsuccessful litigation.

11. I also cannot comment, because it was never a matter for decision, about whether or not the claim for $400,000 was hopeless. Having observed the parties I suspect, but make no finding, that the claim was abandoned out of consideration by the plaintiff for her father's future welfare.

12. In my view the just result in this case is for the defendant to pay the whole of the plaintiff's costs of the proceedings. Accordingly, I decline to amend the original costs order.

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Decision last updated: 22 February 2024