Jones v Deans
[2003] NTSC 94
•28 AUGUST 2003
Jones v Deans [2003] NTSC 94
PARTIES:JONES, Jennifer Physllis Selina
v
DEANS, Peter Noel
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN
JURISDICTION: COSTS APPLICATION
FILE NUMBER: 96/1999 (9916569)
DELIVERED: 28 AUGUST 2003
HEARING DATE: 22 AUGUST 2003
REASONS OF: THE MASTER
CATCHWORDS:
COSTS - Northern Territory - Order 63.22 - Local Court jurisdiction - percentage of Supreme Court scale
COSTS - Northern Territory - Order 63.03(2) - anomaly
EVIDENCE - Northern Territory - costs - admissibility of without prejudice letters
STATUTES - Northern Territory - section 5(1) De Facto Relationship Act - Local Court jurisdiction
Liquorland (Australia) Pty Ltd v G Y G Holdings Pty Ltd (CA (NSW) - 27 March 1995), followed
REPRESENTATION
Counsel:
Plaintiff Ms Gearin
Defendant: Mr Francis
Solicitors:
Plaintiff Diana Elliott
Defendant David Francis & Associates
Judgment ID number mas18
Number of pages 5
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Jones v Deans [2003] NTSC 94
No. 96 of 1999 (9916569)
BETWEEN:
JENNIFER PHYLLIS SELINA JONES
Plaintiff
and
PETER NOEL DEANS
Defendant
CORUM: MASTER COULEHAN
REASONS FOR DECISION
(Delivered 28 August 2003)
There has been judgment for the plaintiff in the sum of $45,000. The jurisdictional limit of the Local court is $100,000 (see sections 3 and 14 of the Local Court Act). O.63.22 provides-
“(1) Subject to subrule (2), where in a proceeding -
(a) a plaintiff recovers (or but for a set off under rule 13.14 against his claim would be entitled to recover) an amount which is an amount within the jurisdiction of the Local Court; and
(b)the Court makes an order that the defendant pay the plaintiff’s costs of the proceeding
the plaintiff is not entitled to recover from the defendant an amount for costs which exceeds that which he would have recovered in the Local Court, unless the Court is satisfied that he had good reason to commence the proceeding in the Court.”
Subrule (2) is not relevant to this proceeding.
The sum of $45,000 is, prima facie, an amount within the jurisdiction of the Local Court, but a question arises as to whether the plaintiff would have recovered that amount in the Local Court. Section 5 of the De Facto Relationships Act provides-
“(1) Subject to subsection (2), the Local Court does not have jurisdiction under this Part to declare any title or right in respect of, or adjust any interest in property of a value or amount which exceeds the jurisdictional limit within the meaning of the Local Court Act.
Subsection (2) provides that the Local Court may have jurisdiction by consent.
The award in favour of the plaintiff was an order adjusting the interests of the parties in property pursuant to section 18 of the De Facto Relationships Act. The value of the property was well in excess of $100,000. One asset, Pandanus Farm, towards which the plaintiff made the most significant contribution, was valued at more than $100,000. The plaintiff could not have obtained this award in the Local Court without the consent of the parties in writing and there is no evidence that such consent was contemplated. Insofar as it is necessary to so find, I am satisfied that the plaintiff had good reason to commence this proceeding in this Court.
It was argued on behalf of the plaintiff that, in the event it was necessary, I should fix the appropriate percentage of the Supreme Court scale at 100% pursuant to rule 38.04 of the Local Court Rules. There was no argument as to whether this course was open, but the Supreme Court Rules do not appear to make such provision. The absence of such a power leads to an anomaly because there is no means of ascertaining the appropriate percentage to be applied on taxation. The lack of such power is an anomaly within the meaning of O.63.03(2) and the Court may make such order as is appropriate.
Rule 38.04 of the Local Court Rules sets out the matters to have regard to in fixing the appropriate percentage. These include the complexity of the proceeding in fact and law, the amount awarded to the plaintiff and the efficiency with which the parties conducted the proceeding.
In relation to the complexity of the proceeding I consider it to have been of significant complexity because of the issues arising out of the valuation of the defendant’s assets, the allegations of fraud made by the defendant and the difficulties surrounding the defendant’s losses. As to the efficiency with which the parties conducted the proceeding, I am of the opinion that the plaintiff conducted the proceeding efficiently, but the defendant was less efficient, particularly in relation to the late filing of affidavits, and the use of documents at trial.
The Court is also to be guided by percentages in relation to the amount of the claim as set out in rule 38.04(3)(b). The claim was in excess of the jurisdiction of the Local Court, although the amount recovered was much less. This amount would justify at least 80% of the Supreme Court Scale, and it fell short of 100% by only $5,000. I consider that having regard to the matters canvassed above, the appropriate percentage should be 100% of the Supreme Court Scale.
Costs normally follow the event, but it has been submitted on behalf of the defendant that I depart from this course because of the conduct of the plaintiff. It was sought to tender certain documents as evidence of this conduct. Some of these documents were marked “without prejudice” and were clearly inadmissible (see Liquorland (Australia) Pty. Ltd. v Gyg Holdings Pty. Ltd. and Ors., an unreported decision of the Supreme Court of New South Wales Court of Appeal dated 27 March 1995).
One document was an Offer of Compromise pursuant to O. 26 dated 27 March 2002, but the offer made was significantly less than the sum awarded. There was also a letter dated 8 January 1999 from the plaintiffs solicitor to the defendants solicitor which appears to be a letter before action setting out the plaintiffs claim. I gather that, by use of the offer of compromise and the letter, in association with letters containing “Calderbank offers”, the defendant is seeking to demonstrate the unreasonableness of the plaintiffs conduct and the difficulty faced by the defendant in attempting settlement. The documents are admissible for this purpose.
By facsimile message dated 19 March 2003 the defendant made an all inclusive offer to the plaintiff. The proceeding had been set down for trial by this time and there is evidence as to the plaintiffs costs and disbursements. These costs have not been fully itemised, but even allowing considerable margin for error, the offer does not appear to be any better than the Offer of Compromise. There were further offers and counter-offers, and it appears that the proceeding was close to settlement. The plaintiffs final offer, reasonable in the circumstances, was rejected by the defendant on the grounds that further costs had been incurred in preparing for trial. The plaintiff acted reasonably in not accepting the defendants final offer.
In my opinion the conduct of the plaintiffs case was reasonable throughout and there are no grounds for depriving her of costs. The defendant will pay the plaintiffs costs of the proceeding to be taxed on the standard basis in accordance with the provisions of O.63 of the Supreme Court Rules.
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