Itn v Ihh

[2015] QDC 32

DISTRICT COURT OF QUEENSLAND

CITATION:

ITN v IHH [2015] QDC 32

PARTIES:

ITN
(Applicant)

and

IHH
(Respondent)

FILE NO/S:

D328 of 2014

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Townsville

DELIVERED ON:

11 February 2015

DELIVERED AT:

Townsville

HEARING DATE:

24 November 2014

JUDGE:

Durward SC DCJ

ORDERS:

1. Application dismissed and orders made in terms of the attached consent orders.

2. The respondent to pay to the applicant her costs of the application on the standard basis, as agreed or as assessed.

3. Parties have liberty to apply on 5 days notice.

CATCHWORDS:

PROCEDURE - COSTS – PROPERTY ADJUSTMENT - CONDUCT OF PARTIES – whether application was unnecessary, premature and an abuse of process - whether respondent’s conduct unreasonable – where parties once hearing of application imminent were able to agree on consent orders for sale of property and  disposition of proceeds of sale – where costs awarded to applicant.

LEGISLATION:

Sections 33, 286 and 288 property law Act 1974; Rule 681 Uniform Civil Procedure Rules 1999.

COUNSEL:

Ms V Keegan of counsel for the Applicant
Mr A Raeburn for the Respondent

SOLICITORS:

Purcell Taylor Lawyers, for the Applicant
Connolly Suthers Lawyers, for the Respondent.

1. This matter concerns the sale of real property pursuant to the Property Law Act 1974.

The application

1. The Originating Application was filed by the applicant on 30 October 2014, seeking orders to give effect to the sale of a former jointly owned home situated at 2 Niall Court, Annandale (“the property”) and the distribution of the net proceeds of sale between the parties.

1. I heard the application on 24 November 2014. Progress was made toward consent orders to resolve the Originating Application, with the parties expressing agreement for consent orders to be made. The issue of costs was reserved and the parties given leave to file further material and liberty to apply. 

1. The proposed consent orders were not perfected at that time and have not been made. However, subsequent events have overtaken those proposed orders, the property now having been sold and the net proceeds of sale being available for distribution.

1. Nevertheless, the consent orders are to be made as at 24 November 2014. The intent of the parties is an equal distribution of the net proceeds of sale (but inferentially subject to my determination of the issue of costs).

1. The consent orders have been perfected and provided to the Court. Hence, I will make the orders as agreed by the parties, subject to the potential qualification to which I have referred.  

Costs

1. The applicant has sought the costs of her application on the ground that the respondent’s conduct in respect of the sale of the property and the final resolution of the mutual property affairs of the parties has been unreasonable.

1. The respondent has sought his costs, contending that the originating application was unnecessary, premature and an abuse of process.

The relevant history between the parties

1. It is necessary, unfortunately, to canvass the history of the relevant affairs of the parties to determine the merit of their competing contentions.

1. The relationship was a lengthy one: 1983 to September 2011. The only relevant asset is the subject property, purchased in 2001. On 12 December 2011, the applicant proposed a settlement. She deposed that subsequent attempts to achieve settlement were unsuccessful and that she again proposed a settlement on 10 January 2014 and again on 04 August 2014.

1. Her lawyers sent a letter dated 12 September 2014 to the respondent notifying him of an intention to seek the appointment of a statutory trustee to sell the home. She deposed that the respondent replied with words to the effect, “I have made my offer, if you don’t like it bring it on”. The respondent deposed that he replied in such terms “out of frustration”.

1. There is a factual dispute about when the parties vacated the property. The applicant deposed that she vacated the property in July 2014 and that the respondent remained there, paying 50 per cent of the mortgage. That may be a typographical error by her. Nevertheless, the respondent deposed that he vacated the property in January 2012 and thereafter resided in an Airlie Beach house. I am unable to resolve that issue on the papers but in the circumstances it is not critical to my determination of the costs issue.

1. The respondent deposed that upon separation, the parties were unable to agree on a property distribution. He contends both were hoping that the real estate market would improve. He rejected the assertion that he had made no real attempt to resolve the matter, that he had been willing to purchase the property and that he had listed it for sale with a real estate agent. He deposed that there was an “agreement” reached on 04 August 2014 but the applicant did not respond to his emails. The applicant contends that her lawyers had written to the respondent proposing a settlement and that was followed by the further letter of 12 September 2014.

1. It appears that the respondent had a greater income, particularly in more recent times from his employment in the mining industry, than the applicant, even though they both may have been able to draw income from a pool business.

1. The respondent only retained lawyers fairly late in the chronology of events. Finally, the applicant’s solicitors made an offer to settle on 20 November 2014 which was open until noon the following day. Counsel was to be briefed on the application if there was no response. That is what occurred I understand. The respondent’s lawyers were without instructions earlier on 21 November 2014, but made an offer in response in the mid-afternoon of that date.

Discussion and resolution

1. Costs are at large and in the discretion of the court: rule 681 Uniform Civil Procedure Rules 1999.

1. I am satisfied that the applicant made the Originating Application because the respondent was being unreasonable in effecting a final settlement. The Originating Application, together with the respondent’s belated retention of lawyers, has had the desired effect of bringing the parties to an agreement on settlement of the property adjustment.

1. Whilst there may have been some delay by both parties, I do not consider the application to have been unnecessary, premature or an abuse of process. The reply by the respondent, whether out of frustration or otherwise, to the offer made on 12 September 2014 demonstrates the difficulties he created in his communication with the applicant. It was unreasonable conduct, particularly in the context of his not thereafter having tried to resolve the matter before his subsequently retained lawyers’ intervention. Further, his assertion that his email, after the 04 August 2014 offer by the applicant’s lawyers, was not responded to by the applicant, was sent – if at all – to her, not to her lawyers who had made the offer in their letter.

1. The applicant’s solicitor has exhibited to her Affidavit a bill of costs in the sum of $10, 289.50. This sum is disputed by the respondent’s solicitor.

1. I am satisfied that the applicant should have her costs, but on the standard basis, either as agreed or as assessed.

Orders

1. Application dismissed and orders made in terms of the attached consent orders.

2. The respondent to pay the applicant her costs of the application on the standard basis, as agreed or as assessed.

3. Parties have liberty to apply on 5 days notice.