Gregor v Amaya

[2021] NSWSC 220

Supreme Court

New South Wales

Medium Neutral Citation:

Gregor v Amaya [2021] NSWSC 220

Hearing dates:

On the papers

Decision date:

12 March 2021

Jurisdiction:

Equity - Expedition List

Before:

Sackar J

Decision:

See para [18]

Catchwords:

COSTS — Party/Party — General rule that costs follow the event

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Calderbank v Calderbank [1976] Fam 93

Commonwealth of Australia v Gretton [2008] NSWCA 117

Gregor v Amaya [2021] NSWSC 89

Category:

Costs

Parties:

Anna Ligia Gregor (plaintiff)
Ligia Manuela Amaya (defendant)

Representation:

Counsel:
J Dooley (defendant)

Solicitors:
Stephen Hodges, Hodges Legal (plaintiff)
Makinson d’Apice, Lawyers (defendant)

File Number(s):

2020/12346

Judgment

1. I gave judgment in this matter on 19 February 2021. I found a resulting trust in favour of the Plaintiff in relation to a property in Gymea in the name of the Defendant. I concluded that the Plaintiff’s proportion in that property was 51%: Gregor v Amaya [2021] NSWSC 89. The matter outstanding is the appropriate order for costs.

2. In the proceedings the Plaintiff alleged a trust but sought proportions of 75/25 % in favour of the Plaintiff.

3. In addition the Plaintiff pleaded two agreements between herself and the Defendant amongst other things. The Defendant, by reason of her being incapable of obtaining instructions, simply pleaded non admissions to each paragraph of the statement of claim.

4. The defence, however, did set out a methodology for the calculation of the Plaintiff’s interest at [26] which purported to evaluate the Plaintiff’s interest at 41%. It is to be accepted that the Defendant revised those percentages upwards in the submissions filed for the hearing (accepting 48.96% for the Plaintiff).

5. The effect of the defence was that the Plaintiff was put to the proof of the existence of a trust and the relevant percentage interest in the property.

6. The Plaintiff sought her costs. The Defendant submitted that each party should pay her own costs.

7. The Plaintiff submitted that the general rule that a successful party should be awarded costs against an unsuccessful party should apply in this case and that the Court should have regard to several factors.

8. These factors include the Plaintiff’s attempts to negotiate, that the burden of costs for preparation for proceedings was not alleviated by the Defendant’s “do not admit” style, that the service of the Plaintiff’s affidavit did not alter the Defendant’s position, that the result to the Plaintiff was more favourable than the Defendant’s Calderbank offer, that the Plaintiff readily made admissions to facts and documents served, and that the Defendant did not cross examine the Plaintiff to attempt to resolve issues in her favour.

9. It was therefore submitted that the Plaintiff had no option but to commence proceedings.

10. The Defendant submitted that there should be no order as to costs for two reasons.

11. First, it was submitted that the issue in dispute was not whether the Plaintiff had an interest in the property – a matter that was uncontested by the Defendant (Judgment at [52]). Rather, the question was the relevant percentage.

12. In coming to a conclusion on the percentage issue, I did not accept either of the Plaintiff’s analyses, so the Defendant submitted that the Plaintiff’s Statement of Claim did not aid the Court and indeed the Plaintiff’s arguments were rejected.

13. Secondly, the Defendant submitted that she conducted the case efficiently and in a way which minimised costs. The Defendant, being a person under incapacity, was not in a position to give instructions to consent to the claim. However, there was no cross-examination, and very limited objections to evidence. The Defendant submitted that she assisted the Court by proposing a methodology for reconciling the parties’ respective contributions to the Gymea property, despite none being advanced by the Plaintiff. It was put to me that these matters favour the exercise of discretion so as not to make a costs order adverse to the Defendant.

14. Costs are a matter for the Court’s discretion and they normally follow the event, s.98 Civil Procedure Act 2005 (NSW), and Uniform Civil Procedure Rules 2005 (NSW) r.42. Costs should be awarded “in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs”: Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121] per Hodgson JA (with whom Mason P agreed).

15. The Plaintiff was put to the expense of litigating the claim and proving her case. The Defendant did however attempt to compromise the matter by offering the Plaintiff a declaration that her interest should be fixed at 43.5%. I also accept the trial was run efficiently and there was no cross examination.

16. The fact is the Plaintiff did better in the ultimate outcome than was pleaded against her or offered by way of compromise.

17. That said the Plaintiff did not achieve what she had sought in her pleading nor did she set out in submissions an entirely intelligible methodology. She did, however, succeed in proving a trust and obtained orders in her favour. In my view I consider that costs should follow the event.

18. I would therefore make an order that the Defendant should pay the Plaintiff’s costs of the proceedings on an ordinary basis. Please send in short minutes to reflect my reasons.

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