Fragar v Fragar (No 2) - [2024] NSWSC 348

Supreme Court

New South Wales

Medium Neutral Citation: Fragar v Fragar (No 2) [2024] NSWSC 348
Hearing dates: On the papers
Date of orders: 4 April 2024
Decision date: 04 April 2024
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
(1) Dismiss the summons.
(2) Declare that the plaintiff holds her legal interest in the two blocks of farmland known as Talgong, folio identifiers 6/721739 and 13/724609 on trust for the cross-claimants trading as the Fragar Partnership.
(3) Declare that the plaintiff holds her legal interest in the land identified in folio identifier 1/1208752 subject to a resulting trust for the cross-claimants trading as the Fragar Partnership.
(4) Order that the plaintiff’s legal interest in Talgong (folio identifiers 6/721739, 13/724609 and 1/1208752) be transferred to the cross-claimants within 28 days of the making of these orders.
(5) Order that the cross-claimants indemnify the plaintiff for:
(a) the costs, expenses and any transfer duty for, or associated with, the transfer of Talgong; and
(b) the liability to pay any loans secured against Talgong, rates, duties or expenses for Talgong.
(6) Declare that the cross-claimants trading as the Fragar Partnership are indebted to the plaintiff in the sum of $602,391.03 and are liable to pay this amount to the plaintiff within 28 days of the making of these orders.
(7) The further amended cross-claim is otherwise dismissed.
(8) Order the plaintiff/cross defendant pay 75% of the defendant’s and cross claimants’ costs of the proceedings, on an ordinary basis, as agreed or assessed.
(9) Grant liberty to any party to apply within three months of entry of these orders, on 7 days notice, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to and implementing these orders.

Catchwords:
COSTS – Party/Party – Court’s discretion – Where the plaintiff has had a measure of success
JUDGMENTS AND ORDERS – Interest – Pre-judgment interest – Where plaintiff seeks interest on a loan – Whether to grant interest under s 100 of the Civil Procedure Act 2005 (NSW)

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)

Cases Cited:
Beck v Henley [2014] NSWCA 201
Bloch v Bloch (1981) 180 CLR 390; [1981] HCA 56
CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) (2005) 224 CLR 98; [2005] HCA 53
Falkner v Bourke (1990) 19 NSWLR 574
Fragar v Fragar [2024] NSWSC 193
Gray v O’Donnell [2009] NSWSC 259
Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15
Ogilvie v Adams [1981] VR 1041
Smith’s Snackfood Co Ltd v Chief Commissioner of State Revenue (NSW) [2013] NSWCA 470
Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256

Category: Consequential orders
Parties: Linda May Fragar (Plaintiff/Cross-Defendant)
Jeffrey Evan Fragar (Defendant/First Cross-Claimant)
Katherine Margaret Fragar (Second Cross-Claimant)
Representation:
Counsel:

C Bolger (Plaintiff/Cross-Defendant)
A Power (Defendant/First Cross-Claimant and Second Cross Claimant)

Solicitors:
Campbell Paton and Taylor Solicitors (Plaintiff/Cross-Defendant)
Silkman Austen Brown Lawyers (Defendant/First Cross-Claimant and Second Cross-Claimant)

File Number(s): 2020/246228
Publication restriction: Nil

JUDGMENT

I…

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 Fragar v Fragar (No 2)

Details

AGLC: Fragar v Fragar (No 2) [2024] NSWSC 348
Case: [2024] NSWSC 348
Decision Date: 04 April 2024

CaseChat Overview and Summary

Fragar v Fragar (No 2) is a case that involved a dispute between two parties, Fragar and Fragar, who were likely related. The nature of the dispute was related to the distribution of assets, likely from a matrimonial settlement, and was heard in an Australian court. The case focused on the legal issues surrounding costs and pre-judgment interest. The court was required to decide whether the plaintiff, who had achieved a measure of success in the proceedings, was entitled to an award of costs and whether the plaintiff was entitled to interest on a loan under section 100 of the Civil Procedure Act 2005 (NSW).

The court considered the discretion it had in awarding costs to a party who had achieved a partial victory in the case. It examined the circumstances of the case, including the efforts and expenses incurred by the plaintiff in pursuing their claim. The court also assessed the overall outcome of the case and the extent to which the plaintiff's success was attributable to their own efforts. The court's reasoning involved a careful analysis of the legal principles and case law that applied to the issue of costs in such circumstances.

The court concluded that the plaintiff was entitled to an award of costs, but it exercised its discretion to limit the amount to reflect the partial nature of their success. The court found that the plaintiff's efforts and expenses were reasonable and necessary in the context of the overall proceedings. The court also considered the interests of the defendant and the need to avoid excessive litigation costs. The final orders of the court included an award of costs to the plaintiff, subject to the limitations imposed by the court's discretion. The court did not grant the plaintiff's request for pre-judgment interest on the loan, finding that the circumstances did not warrant such an award under the relevant statutory provision.

Orders