I v H

[2004] QDC 578

[2004] QDC 578

DISTRICT COURT

CIVIL JURISDICTION

JUDGE RACKEMANN

No 883 of 2002

I	Plaintiff
and
H	Defendant

BRISBANE

..DATE 14/09/2004

ORDER

HIS HONOUR:  This is an application for costs in relation to the proceedings. 

The application is made by the plaintiff and rests to a large extent on the fact that the award, which was ultimately made in the plaintiff's favour, exceeded in a monetary amount, the amounts of offers that have been made at an earlier time in relation to settlement.

The proceeding was one brought under the Property Law Act for the adjustment property interest consequent upon the break down of a de facto relationship.

In such proceedings costs do not ordinarily follow the event.  Section 341 of the Property Law Act provides, in subsection 1, that a party to a proceedings under this part bears the parties own costs.

Subsection 2, however, provides that if the Court is satisfied that there are circumstances justifying it making an order, it may make any order for costs or secure the costs it considers appropriate.

Subsection 4 sets out a range of matters which the Court must consider, in considering whether or not the circumstances justify making an order.

Section 341 of the Property Law Act is in terms which are similar to section 117 of the Family Law Act. The relevant provision from the Family Law Act was considered in Penfold v Penfold 1980 144 CLR 311 in which it was held that an applicant for costs has to establish no more than justifying circumstances exist. There is no onus on the applicant to show that it is a clear case for an order for costs. I have approached section 341 of the Act on that basis.

In relation to the matters set out in subsection 4, the income, property and financial resources of each of the parties has been set out in my reasons for judgment.  The parties were not on legal aid. 

Although, as the reasons note, there was some difficulty with the statements of assets filed by each of the parties, there is, in my view, nothing about the conduct of the parties in relation to the procedural matters which would warrant an order for costs, or weigh in the balance in favour of an order for costs.

These proceedings do not result in any failure to comply with a previous order made under this part. 

As is evident from my reasons neither party in this case was wholly successful, or unsuccessful.  The division of property which I ordered was substantially below that for which the plaintiff ultimately contended in the case and substantially above that for which the defendant contended.

No formal offers for settlement had been made. 
As noted the primary consideration upon which the plaintiff relies is the making of settlement offers.  The terms of the settlement offers are set in affidavit of Mr Turnbull, which was filed without objection.  In that affidavit reference is made to an offer which was made on the 29th of January 2002 whereby the plaintiff offered to accept $110,000 in settlement of these matters.

As I have commented on a previous occasion, it is sometimes difficult to know whether a settlement offer made at an earlier point in time bears the same proportion to the value of assets as an order ultimately made by the Court.  This is because assets frequently can change in value between the time an offer is made and when the trial comes about.

In this case, however, the letter making the offer was based on an assumed distribution of 39 per cent in favour of the plaintiff, which is slightly in excess of the distribution which I, in fact, ordered.

In paragraph 12 of the affidavit evidence is given of a range of offers that were made at the close of the first day of the trial which saw the parties only $10,000 apart.  The defendant offering to pay $110,000 and the plaintiff offering to accept $120,000.  Both of those amounts are significantly less than the amount which I ultimately awarded.

Ultimately the question of costs is one which is in the discretion of the Court having regard to all of the factors and in this case I do not propose to exercise a discretion to order costs.  Accordingly, each party will bear it's own costs of the proceedings.

In light of that, gentlemen, will I just cross out paragraph 5.

MR GALLOWAY:  Yes, your Honour.

HIS HONOUR:  Otherwise, order as per amended draft, initialled by me and placed with the papers.

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