No order as to costs of proceedings at first instance generally, save that defendant to pay plaintiff’s costs of application for interlocutory proceedings for preservation of property pending trial. Respondent to pay appellant’s costs of appeal.
CATCHWORDS:
FAMILY LAW – COSTS – De facto relationships – costs of property adjustment proceedings where amount recovered is less than jurisdictional limit of Local Court – costs of property adjustment proceedings where neither party can be said to have been wholly or substantially successful or to have bettered offer – “substantial success” - APPEAL – effect of substituted judgment.
Tristan Jane Kardos (Appellant) Paul Ventriss Sarbutt (Respondent)
FILE NUMBER(S):
CA 40142/05
COUNSEL:
D Alexander (Appellant) E Cohen (Respondent)
SOLICITORS:
Maguire & McInerney, Wollongong (Appellant) Johnson Horsley Lawyers, Wollongong (Respondent)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 4519/04
LOWER COURTJUDICIAL OFFICER:
Quirk DCJ
CA 40142/05
BASTEN JA HUNT AJA BRERETON J
Thursday 27 July 2006
KARDOS v SARBUTT [NO. 2]
Headnote
FACTS
In proceedings for property adjustment under Property (Relationships) Act, s 20, the District Court awarded the respondent an adjustment of $100,000, with costs. The Court had allowed an appeal, substituting an adjustment of $36,075.…
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.
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Details
AGLC
Kardos v Sarbutt (No 2) [2006] NSWCA 206
Case
[2006] NSWCA 206
Decision Date
CaseChat Overview and Summary
In *Kardos v Sarbutt (No 2)*, the New South Wales Court of Appeal considered an appeal concerning the costs of property adjustment proceedings arising from a de facto relationship. The dispute involved the division of assets, and the appeal specifically addressed the appropriate cost orders for both the initial proceedings and the appeal itself, particularly in circumstances where the amount recovered was below the jurisdictional limit of the Local Court and neither party could be considered wholly or substantially successful.
The Court of Appeal was required to determine whether the first instance judge had erred in making certain cost orders, specifically in relation to the general costs of the property adjustment proceedings and the costs of an application for interlocutory preservation of property. Furthermore, the Court had to consider the appropriate costs order for the appeal, given the outcome of the substituted judgment.
The Court reasoned that the general principle of costs following the event was not applicable in this instance, as neither party had achieved substantial success. The judge at first instance had correctly identified that the plaintiff had not achieved "substantial success" in the context of the jurisdictional limit of the Local Court, and that the defendant had not been wholly successful. However, the Court found that the first instance judge had erred in not awarding the plaintiff the costs of the interlocutory application for preservation of property, as this had been a necessary step to protect the assets. Consequently, the Court ordered that there be no order as to the general costs of the proceedings at first instance, save that the defendant was to pay the plaintiff's costs of the interlocutory application. The Court further ordered that the respondent (the plaintiff in the first instance proceedings) was to pay the appellant's (the defendant in the first instance proceedings) costs of the appeal.
Orders
Orders of the court
No order as to costs of proceedings at first instance generally, save that defendant to pay plaintiff's costs of application for interlocutory proceedings for preservation of property pending trial. Respondent to pay appellant's costs of appeal.