Jo Maree Payne v Helen Mary Rowe (No 2) - [2012] NSWSC 1406

Supreme Court

New South Wales

Medium Neutral Citation: Jo Maree Payne v Helen Mary Rowe & Anor (No 2) [2012] NSWSC 1406
Hearing dates: 16 November 2012
Decision date: 23 November 2012
Jurisdiction: Equity Division
Before: Ball J
Decision:
See paragraph 28 of this judgment.

Catchwords: COSTS - UCPR r 42.1 - determining who in substance has won the proceedings - where proceedings initiated by application for order under s 66G of the Conveyancing Act 1919 but majority of evidence focused on respective interests of each party in the property - where neither party has succeeded - where plaintiff alleged to have given deliberately false evidence - held parties should bear their own costs.
Legislation Cited: Conveyancing Act 1919 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Australian Receivables Ltd v Tekitu Pty Ltd [2011] NSWSC 1425
Baumgartner v Baumgartner (1987) 164 CLR 137
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20
Jo Maree Payne v Helen Mary Rowe & Anor [2012] NSWSC 685
Kardos v Sarbutt (No 2) [2006] NSWCA 206
Naomi Marble & Granite Pty Ltd v FAI General Insurance Company Limited (No 2) [1999] 1 Qd R 518
Roache v News Group Newspaper Ltd [1992] TLR 551
Timms v Clift [1998] 2 Qd R 100
Category: Costs
Parties: Jo Maree Payne (Plaintiff)
Helen Mary Rowe (First Defendant)
Jeremy Richard Dawson Rowe (Second Defendant)
Representation: DF Villa (Plaintiff)
KG Oliver (Defendants)
Thomsons Lawyers (Plaintiff)
Reuben George Lawyers (Defendants)

File Number(s): 2011/157795

Judgment

I delivered judgment in this matter on 25 June 2012 (Jo Maree Payne v Helen Mary Rowe & Anor [2012] NSWSC 685) and subsequently, on 17 August 2012, made orders which gave effect to that judgment. The only outstanding issue is costs.

Background

The proceedings concern a property at Ourimbah which is owned by the plaintiff, first defendant and second defendant as joint tenants in equal shares. The second defendant is the plaintiff's brother and the first defendant their mother. They bought the property in 2000 and lived there for a number of years. However, they fell out and eventually the plaintiff moved out of the property in September 2009. On a number of occasions after moving out, the plaintiff raised with her mother when her mother and the second defendant were going to buy out the plaintiff's interest in the property. Eventually, on 22 March 2011, the plaintiff's solicitors wrote to the defendants stating that they had instructions to make an application under s 66G of the Conveyancing Act 1919 (NSW) (the Act) for the appointment of judicial trustees for the sale of the property and also stating that agreement would need to be reached on how the proceeds of sale were to be divided having regard to the "unequal contributions towards the costs incurred for the property, particularly relating to the purchase price and loan repayments". The letter attached a schedule which purported to set out the contributions that each party had made to…

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.

Continue reading Jo Maree Payne v Helen Mary Rowe (No 2)

Details

AGLC: Jo Maree Payne v Helen Mary Rowe (No 2) [2012] NSWSC 1406
Case: [2012] NSWSC 1406
Decision Date: 23 November 2012

CaseChat Overview and Summary

The appeal was brought by Jo Maree Payne against Helen Mary Rowe, and was heard in the Supreme Court of New South Wales. The case centred around a dispute over the respective interests of the parties in a property. The proceedings began when Payne made an application under section 66G of the Conveyancing Act 1919, seeking a declaration of trust. However, the majority of the evidence presented was directed at determining the respective interests of each party in the property, rather than focusing on the original application. Ultimately, neither party was successful in their claims. Payne was also alleged to have provided deliberately false evidence during the proceedings.

The primary legal issue for the court was how to determine the costs of the proceedings under rule 42.1 of the Uniform Civil Procedure Rules 2005. This rule requires the court to consider which party in substance has won the proceedings, to determine who should bear the costs. Given that neither party was successful and that Payne was alleged to have provided deliberately false evidence, the court had to weigh these factors in making its decision.

In determining the costs, the court considered that neither party was the substantive winner of the proceedings. It also noted the allegation that Payne had provided deliberately false evidence, which was a serious matter. The court concluded that, given these circumstances, each party should bear their own costs. This decision was based on the principle that costs should follow the event, and in this case, neither party had a clear advantage in the proceedings.

No further orders were made by the court beyond the determination of costs. Each party was required to bear their own expenses related to the litigation.

Orders