France v Siekaup (No 4) - [2021] NSWSC 963

Supreme Court

New South Wales

Medium Neutral Citation: France v Siekaup (No 4) [2021] NSWSC 963
Hearing dates: On the papers
Date of orders: 03 August 2021
Decision date: 03 August 2021
Jurisdiction: Equity - Duty List
Before: Henry J
Decision:
The defendants to pay the plaintiff’s costs of the dispute as to the ambit and extent of the freezing orders made on 26 March 2021 which was the subject of the judgment delivered in these proceedings on 7 May 2021.

Catchwords:
COSTS – party/party – general rule that costs follow the event – application of the rule and discretion in relation to dispute regarding freezing orders – no issue of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(1)
Uniform Civil Procedure Rules 2005(NSW), rr 42.1, 42.7

Cases Cited:
Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd(No 2) [2018] NSWCA 266
Commonwealth of Australia v Gretton [2008] NSWCA 117
Mead v Watson [2005] NSWCA 133
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Tugrul v Tarrants Financial Consultants Pty Ltd (No 5) [2014] NSWSC 437
Turkmani v Visvalingam (No 2) [2009] NSWCA 279

Texts Cited:
Nil

Category: Costs
Parties: Margaret Ann France (Plaintiff)
Karin Elisabeth Siekaup (First Defendant)
Sieve-Storm Pty Ltd ACN 160 562 354 atf Affordable Property Trust (Second Defendant)
Representation:
Counsel:
M Klooster (Plaintiff)
S Bell (Defendants)
Solicitors:
Cordato Partners Lawyers (Plaintiff)
Ian B Mitchell & Associates (Defendants)

File Number(s): 2018/323180
Publication restriction: Nil

Judgment

These reasons deal with the issue of costs following a dispute between the parties as to the ambit and extent of freezing orders made by the Court on 26 March 2021 which is the subject of my judgment in France v Siekaup (No 3) [2021] NSWSC 497. These reasons assume familiarity with that judgment.
The Court has received and considered written submissions on the issue of costs from the parties who are content for that issue to be dealt with on the papers.
In the judgment, I concluded that the freezing orders could be construed as extending to the assets held by Sieve-Storm Pty Ltd as trustee of the Sieve-Storm Trust, as contended by the plaintiff, and should not be limited in the manner sought by the defendants to the trust assets held by Sieve-Storm Pty Ltd as trustee of the Affordable Property Trust. However, I considered that there was ambiguity in the freezing orders as drafted.
The plaintiff seeks an order that the second defendant pay her costs of 22 April 2021 and thereafter or, alternatively, that the costs be the plaintiff’s costs in the cause.
The plaintiff submits that the second defendant should be ordered to pay her costs as it did not exercise liberty to apply to vary or discharge the freezing orders after they were initially made and consented to those orders being extended in their current form on 1 and 8 April 2021. She points to the fact that the defendants did not make any effort to liaise with…

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.

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Details

Case: [2021] NSWSC 963
Decision Date: 03 August 2021

CaseChat Overview and Summary

In the case of France v Siekaup (No 4), the matter before the court involved a dispute over costs incurred in relation to freezing orders. The plaintiff, France, sought costs from the defendant, Siekaup, for the freezing orders that had been issued and subsequently set aside. The court had to determine whether Siekaup should bear the costs associated with the orders, considering the general rule that costs follow the event.

The primary legal issue for the court to decide was whether the general rule that costs follow the event applied in this case, and if so, how the court should exercise its discretion in relation to the dispute over the freezing orders. The court had to consider whether there were any circumstances that warranted deviating from the usual rule of costs following the event.

The court held that the general rule that costs follow the event did apply in this case. However, the court recognised that there were no issues of principle that would justify deviating from this rule. The court exercised its discretion and determined that Siekaup should bear the costs of the freezing orders, as the orders were set aside, and the application had ultimately been unsuccessful. The court concluded that while the rule generally applied, its discretion was limited in this instance due to the absence of any overriding principles that would warrant a different outcome.

The final orders of the court mandated that Siekaup was to pay the costs of the application for the freezing orders, as set aside, within a specified time frame. The court's decision was based on the application of the general rule regarding costs and the exercise of discretion within the bounds of the law.

Orders