H, AW v K, S (No 2) - [2022] SASC 49

Supreme Court of South Australia

(Civil)

H, AW v K, S (No 2)

[2022] SASC 49

Judgment of the Honourable Auxiliary Justice Bochner

18 May 2022

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - GENERAL PRINCIPLES AND EXERCISE OF DISCRETION

Costs – effect of filed offer – claim and counterclaim dismissed.
Jurisdiction of Courts (Cross-vesting) Act 1987 (SA); Family Law Act 1975 (Cth), referred to.
Medway Oil & Storage Co Ltd v Continental Contractors Ltd [1929] AC 88; Badge Constructions Pty Ltd v Penbury Coast Pty Ltd [1999] SASC 6; Formosa v Eminent Forms Pty Ltd [2005] SASC 35; Coles v Wood [1981] 1 NSWLR 723; Rasch Nominees Pty Ltd v Bartholomaeus [2012] SASC 70; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd & Ors (No 2) [2001] FCA 1861; Re Williams; Smith v Thwaites (No 2) [2017] VSC 771; Guo v Commonwealth of Australia (No 2) [2018] FCA 13; Manassen Holdings Pty Ltd & Anor v Commercial & General Corporation Pty Ltd (No 2) [2019] SASC 183; Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572; Development Assessment Commission v Macag Holdings Pty Ltd [2001] SASC 189; Webuildem Pty Ltd v Arab Bank Australia Ltd [2013] FCA 37; Kowalski v Stanley & Partners & Anor [2014] SASC 198; Blair & Ors v Curran & Ors (1939) 62 CLR 464; Ekes v Commonwealth Bank of Australia [2014] NSWCA 336; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; Clayton v Bant [2020] HCA 44, considered.

H, AW v K, S (No 2)

[2022] SASC 49

On 11 November 2021, I delivered judgment whereby I dismissed both the applicant’s claim and the respondent’s counterclaim. Each party has now sought orders for costs in their favour.

The claim

In his claim, the applicant sought a declaration that the respondent held a sum of money on trust for him, and that he owned a motor vehicle which remained in her possession. In the alternative, he sought restitution of the monies. Initially, he also sought orders in respect of a number of other personal items, including jewellery. At trial, he did not press his claim in respect of these other items.
The applicant alleged that a Quistclose trust had been created, as a result of which the monies which he had transferred into the respondent’s bank account remained his. He said that the motor vehicle was his, and that the respondent was allowed to use it during their relationship. I concluded that both the monies and the motor vehicle were gifts to the respondent.

The counterclaim

By her cross claim, the respondent sought a declaration that she and the applicant were in a de facto relationship. She also alleged that the motor vehicle was a gift to her,…

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: [2022] SASC 49
Decision Date: 18 May 2022

CaseChat Overview and Summary

The case before the court involved two parties, H, AW and K, S. The dispute arose from civil proceedings in state courts, with both parties having filed claims and counterclaims. The primary issue before the court was to determine the costs incurred during the litigation, applying the general rule that costs follow the event. The court had to exercise its discretion in light of the filed offers made by the parties.

The legal issues before the court included whether the costs incurred were to be awarded on the standard basis, the indemnity basis, or some other basis. Additionally, the court needed to consider the impact of the filed offers on the costs that would be awarded. The court was required to balance the parties' positions and determine a just outcome in light of the general principles governing costs in civil proceedings.

The court carefully considered the filed offers and the respective positions of the parties. Ultimately, the court dismissed both the claim and the counterclaim, and awarded costs on the standard basis. The court found that the filed offers did not significantly impact the costs, and therefore, the standard costs order was appropriate. The court exercised its discretion and determined that the costs should follow the event, with the successful party being awarded costs.

In light of the above, the final orders were that the claim and counterclaim were dismissed, and costs were to be awarded on the standard basis. The court's decision was based on a careful consideration of the general principles governing costs in civil proceedings, and the court's discretion in balancing the parties' positions.

Orders

Orders of the court

Costs – effect of filed offer – claim and counterclaim dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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