Kardos v Sarbutt (No 2)

Case [2006] NSWCA 206


Reported Decision: (2006) DFC 95-337

Court of Appeal


CITATION: Kardos v Sarbutt (No. 2) [2006] NSWCA 206
HEARING DATE(S): 30 March 2006 - written submissions closed
 
JUDGMENT DATE: 

27 July 2006
JUDGMENT OF: Basten JA at 1; Hunt AJA at 5; Brereton J at 6
DECISION: 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.
LEGISLATION CITED: (CTH) Family Law Act, s 117
(NSW) Civil Procedure Act 2005, ss 98, 99, 101(3)
(NSW) Conveyancing Act 1919, s 66G
(NSW) Courts Legislation Amendment Act 2003, Schedule 6(1)
(NSW) District Court Act 1973, s 134(1)(g), s 134(3)
(NSW) Local Court (Civil Claims) Act 1970, s 12
(NSW) Property (Relationships) Act, s 10
(NSW) Suitors Fund Act, s 6
(NSW) DCR Pt 39A r 12, Pt 51D r 1
(NSW) SCR Pt 52 rr 22, 24, 24A, 34, 35
(NSW) UCPR rr 36.4, 42.30
CASES CITED: Butcher v Pooler (1883) 24 Ch D 273
Chanter v Catts (No 2) [2006] NSWCA 179
Crellin v Robertson [2005] ACTSC 36; (2005) DFC 95-316
Deves v Porter [2003] NSWSC 878
Gould v Vaggelas (1985) 157 CLR 215
Government Insurance Office (NSW) v Healy [No. 2] (1991) 22 NSWLR 380
Hamer v Giles (1879) 11 Ch D 942
Harris v Schembri (NSWSC, 7 November 1995, unreported, BC 9501757)
Hawkins v Parsons (1862) 8 Jur (NS) 452;
Kardos v Sarbutt [2006] NSWCA 11
Magera v MacIntosh (No 2) (2005) DFC 95-319
Newton v Taylor (1827) 19 Eq 14
Nicholson v Nicholson (No 2), Court of Appeal (BC9504206), 1 February 1995
NSW Insurance Ministerial Corporation v Gomes (No 2), Court of Appeal (BC9807723), 3 December 1998
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306
Parsons v Hayward (1862) 4 De GF&J 474
Shellharbour City Council v Johnson [No 2] [2006] NSWCA 114
Van Zonneveld v Seaton [2005] NSWSC 175
Vollmer v Hauber Davidson [2006] NSWCA 79
PARTIES: 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 COURT JUDICIAL 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.…

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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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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