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

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."
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)."
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."

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.
The details of the respective claims of the parties can be ascertained from the primary judgment.
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.
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."
The fact that he had to prepare for…

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 Davis v Davis (No 3)

Details

AGLC: Davis v Davis (No 3) [2024] NSWSC 125
Case: [2024] NSWSC 125
Decision Date: 22 February 2024

CaseChat Overview and Summary

The matter before the court was an application by the successful party in a property dispute to amend a costs order. The parties were former spouses, Davis and Davis, who had been engaged in protracted litigation over property matters. The court was required to determine whether it should exercise its discretion to amend the costs order, particularly in light of the successful party abandoning a monetary claim prior to the hearing of the costs application.

The legal issue at the heart of the case was whether the court should exercise its discretion to amend the costs order in light of the successful party's decision to abandon a monetary claim before the hearing. This involved a consideration of the principles governing the exercise of discretion in relation to costs orders, as well as the circumstances of the case, including the conduct of the parties and the outcome of the litigation.

The court found that the exercise of its discretion to amend the costs order was appropriate in the circumstances. It noted that the successful party had abandoned a monetary claim prior to the hearing, which had the effect of reducing the costs incurred by the unsuccessful party. The court also considered the overall conduct of the parties and the outcome of the litigation, and concluded that an amendment to the costs order was warranted. The court exercised its discretion to reduce the costs awarded to the successful party, reflecting the fact that the monetary claim had been abandoned before the hearing. The successful party was ordered to pay the costs of the unsuccessful party up to a specified date, with the total amount being reduced by a percentage reflecting the abandonment of the monetary claim.

Orders