Jensen v Pearce (No 2)

[2013] NSWCA 294

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Jensen v Pearce (No 2) [2013] NSWCA 294

Hearing dates:

On the papers

Decision date:

05 September 2013

Before:

Basten JA at [1];
Barrett JA at [13];
Emmett JA at [14]

Decision:

In lieu of the order as to costs made by the District Court on 28 March 2012, order that the plaintiff pay the defendant's costs with respect to her claim under the Property (Relationships) Act.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

COSTS - general rule that costs follow the event - whether any reason why costs should not follow the event - appellant successfully challenged judgment regarding Property (Relationships) Act 1984 (NSW) claim - appellant had three sets of legal representation - appellant self-represented at trial - appellant refused to allow valuation of foreign assets - whether refusal unreasonable - appellant raised legally untenable challenges to jurisdiction of court - unlikely that significant costs thereby incurred - costs otherwise offset - Civil Procedure Act 2005 (NSW), s 98 - Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.2

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98
Property (Relationships) Act 1984 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.2

Cases Cited:

Cachia v Hanes [1994] HCA 14; 179 CLR 403
Jensen v Pearce [2013] NSWCA 247

Category:

Consequential orders

Parties:

Steen Jensen (Appellant)
Jillian Frances Pearce (Respondent)

Representation:

Solicitors:

Appellant self-represented
MBT Lawyers (Respondent)

File Number(s):

CA 2012/162190

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-03-28 00:00:00

Before:

Garling DCJ

File Number(s):

DC 2010/101489

Judgment

1. BASTEN JA: The parties to these proceedings were in a domestic relationship for the purposes of the Property (Relationships) Act 1984 (NSW) from February 2002 until August 2006. The respondent, Ms Pearce ("the plaintiff"), commenced proceedings in the District Court at Coffs Harbour seeking an adjustment of their respective interests in property. Mr Jensen ("the defendant"), filed a defence and cross-claim in which he sought, amongst other relief, payment of an occupation fee with respect to a property in this State, in which he had a 97% registered interest, but which had been in the sole occupation of Ms Pearce for some time.

1. In the District Court, the plaintiff was largely successful, obtaining a judgment in her favour in a sum of $94,310. On 5 August 2013 this Court set aside that judgment and gave judgment for Mr Jensen in the sum of $13,000: Jensen v Pearce [2013] NSWCA 247. The Court further ordered that each party bear his or her own costs of the appeal. With respect to the trial costs,…