Dowsett v King (No 2) - [2020] NSWSC 6

Supreme Court

New South Wales

Medium Neutral Citation: Dowsett v King (No 2) [2020] NSWSC 6
Hearing dates: On the papers
Date of orders: 14 January 2020
Decision date: 14 January 2020
Jurisdiction: Equity
Before: Robb J
Decision:
(1)   Orders that judgment be entered in favour of the plaintiff against the defendant in the sum of $171,561.85 (inclusive of interest);

(2)   Orders the defendant to pay the plaintiff’s costs of her claim for repayment of $140,000 plus interest from the commencement of the proceedings to 29 June 2018 and the plaintiff’s costs of the proceedings after that date on the ordinary basis.
(3)   Orders that each party bear their own costs of the proceedings from their commencement to 29 June 2018 in respect of all issues other than the plaintiff’s claim for repayment of $140,000 plus interest.
Catchwords: COSTS – departure from the usual rule – where the plaintiff formally abandoned a substantial part of her case immediately before the final hearing – where plaintiff accepted earlier offer made by the defendant that in return for the plaintiff abandoning several issues, each party would bear their own costs of the issues to be abandoned – where plaintiff successful on remaining issue at a final hearing – appropriate that the defendant pay the plaintiff’s costs of the remaining issue up to the date of accepting the defendant’s offer and the costs of the proceedings thereafter
Legislation Cited: Civil Procedure Act 2005 (NSW), s 100
Contracts Review Act 1970 (NSW)
District Court Act 1973 (NSW), s 134
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333
Dowsett v King [2019] NSWSC 1459
Forsyth v Deputy Commissioner of Taxation (2007) 231 CLR 531; [2007] HCA 8
Huang v Drumm [2017] NSWCA 29
McDonough v Owners Strata Plan No 57504 (2014) 17 BPR 33,573; [2014] NSWSC 1708
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Category: Costs
Parties: Marea Pearl Dowsett by her attorney and tutor Terrence Charles Dowsett (plaintiff)
Donna Maree King (defendant)
Representation:
Counsel:
A J Bulley (plaintiff)
D Eardley (defendant)
Solicitors:
Nicholas Dan (plaintiff)
Falzon Legal (defendant)

File Number(s): 2017/155950
Publication restriction: Nil

Judgment

On 28 October 2019, the Court delivered the principal judgment in these proceedings (Dowsett v King [2019] NSWSC 1459 – “the Principal Judgment”). This judgment, which deals essentially with the issue of costs, assumes familiarity with the Principal Judgment. I will continue to refer to the parties in the same manner as in the Principal Judgment.
By her Statement of Claim filed on 6 July 2017, Mrs Dowsett originally sought a declaration that Donna held the Pelican Property on trust for her. Alternatively, Mrs Dowsett pleaded that the transfer of the Pelican Property to Donna in October 2014 be set aside pursuant to the Contracts Review Act 1970 (NSW) or…

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 Dowsett v King (No 2)

Details

AGLC: Dowsett v King (No 2) [2020] NSWSC 6
Case: [2020] NSWSC 6
Decision Date: 14 January 2020

CaseChat Overview and Summary

The case of Dowsett v King (No 2) was heard in the Supreme Court of Queensland. The plaintiff, Ms Dowsett, had initially brought claims against the defendant, Mr King, in relation to an alleged breach of contract. Before the final hearing, Ms Dowsett formally abandoned a significant portion of her claims in accordance with an agreement with Mr King. Under this agreement, if Ms Dowsett abandoned certain issues, each party would bear their own costs related to those issues. The remaining issue proceeded to a final hearing, where Ms Dowsett was successful.

The primary legal issue before the court was whether it was appropriate to depart from the usual rule of costs in favour of the defendant, who had earlier proposed a cost-sharing arrangement contingent on the plaintiff abandoning certain claims. The court was required to determine the appropriate allocation of costs, considering the circumstances of the case, including the agreed cost-bearing arrangement and the plaintiff’s ultimate success on the remaining issue.

The court held that it was appropriate to depart from the usual rule of costs in favour of the defendant. It reasoned that the circumstances warranted a departure from the norm because the plaintiff had formally abandoned a substantial part of her case based on an agreement with the defendant. The court acknowledged that Ms Dowsett was successful on the remaining issue, but also noted the agreed terms regarding cost-bearing. Consequently, the court ordered that Mr King should pay Ms Dowsett’s costs of the remaining issue up to the date of accepting the cost-sharing arrangement and the costs of the proceedings thereafter.

Orders