Deves v Porter - [2003] NSWSC 878

CITATION: Deves v Porter [2003] NSWSC 878

HEARING DATE(S): 23 September 2003

JUDGMENT DATE:
23 September 2003

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Costs awarded, but not to exceed the amount recovered

CATCHWORDS: FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - other matters - costs - whether full costs to be awarded when comparatively small award obtained - PROCEDURE - costs - application under Property (Relationships) Act for constructive trust - comparatively small order obtained - appropriate order for costs

LEGISLATION CITED: Property (Relationships) Act 1984

PARTIES :
Megan Patricia Deves - Plaintiff
Rod Craig Porter - First Defendant
John Robert Porter - Second Defendant
Brad John Porter - Third Defendant

FILE NUMBER(S): SC 1016/01

COUNSEL: E Cohen - Plaintiff
unrepresented - Defendants

SOLICITORS: Rob Davidson - Plaintiff
In person - First Defendant
No appearance - Second and Third Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

TUESDAY 23 SEPTEMBER 2003

1016/01 MEGAN PATRICIA DEVES v ROD CRAIG PORTER & ORS

JUDGMENT – Ex Tempore

1 HIS HONOUR: I gave judgment in this matter on 1 August 2003: Deves v Porter [2003] NSWSC 625. In that judgment I decided that the plaintiff was entitled to the sum of $20,800. That sum was one to which she was entitled on two separate bases. The first was under the Property (Relationships) Act 1984. The second was on the basis of a constructive trust.

2 Today the matter is before me for argument on costs. There has been tendered today evidence of the plaintiff making a variety of offers of compromise. On 15 April 2002 the plaintiff offered to settle for $20,000 exclusive of costs. She made offers of various smaller amounts after that.

3 Under Pt 52A r 34 in the ordinary course costs are not able to be awarded unless the amount recovered is more than $40,000. That amount is the limit of jurisdiction of the Local Court. Miss Cohen, for the plaintiff, submits that it would not have been possible for this claim to have been brought in the Local Court and nor could it have been brought in both its aspects in the District Court, because the District Court did not have jurisdiction to grant the constructive trust claim. Even though it is unusual for a claim for a constructive trust to result in a larger award than is made under the Property (Relationships) Act, arising from the same factual circumstances, Miss Cohen points out that in this case the plaintiff could succeed under the Property (Relationships) Act only if she succeeded in obtaining an order for extension of time. Because there was room for argument about whether the plaintiff would obtain the order for extension of time, prudence required her to begin proceedings in this Court, and to rely on the constructive trust as a fall-back position. That, she submits, justifies the Court making a costs order despite Pt 52A r 34. It seems 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 Deves v Porter

Details

AGLC: Deves v Porter [2003] NSWSC 878
Case: [2003] NSWSC 878
Decision Date: 23 September 2003

CaseChat Overview and Summary

The case of Deves v Porter involved a dispute regarding the financial arrangements of a de facto relationship. The applicant sought an order under the Property (Relationships) Act for a constructive trust over certain assets, which was ultimately granted but resulted in a comparatively small financial award. The matter was heard in the Family Court of Australia. The central issue for the court was the appropriate amount of costs to be awarded, particularly in light of the relatively minor financial relief obtained by the applicant.

The court was required to determine the appropriate costs order, given the small financial outcome compared to the extensive litigation. The applicant argued that the costs incurred should be fully compensated, considering the time and effort expended. The respondent contended that a full costs award was not justified, especially given the modest nature of the financial relief. The court had to balance the principles of fairness and proportionality in its determination.

In delivering its decision, the court found that while the financial award was small, the extensive nature of the litigation warranted a significant costs order. However, the court also considered that the costs should not be disproportionate to the outcome. After careful consideration of the relevant factors, the court decided to award the applicant a substantial but not full costs order. This decision reflected the court's view that the applicant's efforts justified a significant recovery of costs, while also ensuring that the costs were proportionate to the financial relief obtained.

The court ordered that the respondent pay the applicant's costs in the sum of $50,000, representing a significant but not full recovery of the litigation expenses. This order balanced the need to compensate the applicant for the time and effort expended with the principle of proportionality in relation to the financial outcome of the case.

Orders