JJR v PH (No 2)

[2005] QSC 316

SUPREME COURT OF QUEENSLAND

CITATION:

JJR v PH (No 2) [2005] QSC 316

PARTIES:

JJR
(applicant)
v
PH
(respondent)

FILE NO/S:

BS No 3088 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

18 & 19 July 2005

JUDGE:

Byrne J

ORDER:

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO
RELATIONSHIPS – OTHER MATTERS – costs

Property Law Act 1974 (Qld), s 341

COUNSEL:

P J Sweetapple for the applicant
G K Waterman for the respondent

SOLICITORS:

Christine Vachon Solicitor for the applicant
Rhonda Penny Lawyers for the respondent

1. The respondent (“H”) succeeded in resisting the contention of the applicant (“R”) that the parties were not in a “de facto relationship” within the meaning of that expression in s 261 of the Property Law Act 1974 (“the Act”) after 21 December 1999. On her cross-application, H was substantially successful in establishing an entitlement to relief pronouncing for the periods during which such a relationship subsisted. She now seeks an order for costs.

1. Ordinarily, a party to a proceedings seeking the kind of relief these parties sought bears that party’s own costs: s 341(1) of the Act. However, by s 341(2), “if the court is satisfied there are circumstances justifying it making an order, it may make any order for costs … it considers appropriate”.

1. The circumstances here justify an order for costs in H’s favour in respect of both R’s application and H’s cross-application.

1. R’s contention that the parties were not in a de facto relationship after 21 December 1999 was not seriously arguable. Although his testimony and affidavit evidence differed in many respects from H’s, on his own account of the incidents of the relationship over the years, he had no real prospect of success on his application.

1. The only evidence tending to support R’s contention consisted of documents (see Ex “D” to the affidavit of R sworn 15 July 2005) periodically submitted to Centrelink claiming financial assistance. These documents asserted, in effect, that H was R’s tenant, not his de facto partner. But these assertions were false, as R knew.

1. Secondly, unless costs orders in H’s favour are made, her financial circumstances are such that she is likely to be at considerable disadvantage in the next phase of the contest over an adjustment of the property rights of the parties.

1. H recently received $40,000 from R. But she also has removal and ongoing living expenses to bear. R has a business and other substantial assets, including land. H, however, has little wealth. If she is not reimbursed through costs orders for the expense she has so far incurred in the proceedings, the considerable disparity in their financial situations is likely to affect, unfairly, H’s capacity to participate effectively in pursuing litigation should negotiations fail. And there is every chance that that disparity will prejudice her capacity to engage, on a relatively even footing, with R in settlement negotiations should he, contrary to his stance to date, look to resolve the outstanding issues through mediation or some other means of compromise.

1. Section 341(4) requires that the court “must” consider a number of prescribed matters in considering whether there are circumstances justifying a costs order.

1. The first is “the income, property and financial resources of each of the parties”: see s 341(4))a). Mention has already been made of the disparity indicated by such evidence as was adduced. Given the questions posed for the decision, unsurprisingly, not a lot of evidence was directed to the relative financial circumstances of the parties. But such as there was, indicates a marked disparity; and in the costs contest, neither side has supplemented the evidence concerning the relative financial circumstances of the parties adduced at the hearing.

1. The second matter which must be considered – whether any party has Legal Aid: see s 341(4)(b) – is easily dealt with: neither has.

1. The third concerns the conduct of each party in relation to the proceeding: see s 341(4)(c). I have already dealt with this.

1. Section 341(4)(d) requires that consideration be given to the question whether the proceeding resulted from a party’s failure to comply with a previous order. It did not.

1. The relative degrees of success in the proceeding have already been mentioned: see s 341(4)(e).

1. There is no evidence that either party made an offer to settle under the UCPR: cf s 341(4)(f).

1. Finally, s 341(4)(g) requires any other fact or circumstance the court considers the justice of the case requires to be taken into account.

1. R ignored H’s proposals that the dispute be resolved by compromise. But as the circumstances otherwise require that H should have her costs, it is unnecessary to consider whether R’s unwillingness to engage in negotiations affords an additional reason for him to pay H’s costs.

1. I will hear the parties with respect to the forms of order.