KD v Da (No 2) - [2012] QDC 227

DISTRICT COURT OF QUEENSLAND

CITATION:

KD v DA (No 2) [2012] QDC 227

PARTIES:

KD

(Applicant)

AND

DA
(Respondent)

FILE NO/S:

D31/08

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court, Mt Isa

DELIVERED ON:

28 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

Submissions in writing

JUDGE:

McGill DCJ

ORDER:

No order as to costs.

CATCHWORDS:

DE FACTO RELATIONSHIP – Property Settlement – costs – effect of offer to settle – whether order for costs appropriate.

Property Law Act 1974 s 341.

RD v DB (No. 2) [2011] QSC 124 – followed.

COUNSEL:

S. Pate (solicitor) for the applicant

The respondent appeared in person

SOLICITORS:

Gun Lawyers for the applicant

The respondent was not represented

In this matter I delivered reasons on 16 September 2011 making an order under part 19 of the Property Law Act 1974 that the respondent pay $21,000 to the applicant by way of adjustment of property interests of the parties. Following the publication of those reasons the solicitors for the applicant applied for an order for costs, relying in particular on the fact that, on 18 May 2011, nine days prior to the hearing, the applicant offered to accept $15,000, a sum which was less than the amount which I ordered to be paid, with each party to bear their own costs.

Special provision is made in relation to the question of costs in the Property Law Act 1974 part 19, s 341. This section provides a prima facie position that a party proceeding under this part bears the party’s own costs. There is however the power to make an order for costs a court considers appropriate “if the court is satisfied there are circumstances justifying it making an order”: subs (2).

In considering whether to take that step the court is required to consider the matters listed in subs (4). One of these is whether any party made an offer to settle under the UCPR and the terms of the offer. I consider that this permits the offer to settle to be taken into account, but that the terms of s 341 are inconsistent with rule 360 (and for that matter rule 361) so that the prima facie entitlement to indemnity costs which would arise from the operation of rule 360 does not apply in a proceeding under part 19. Rather the position is that this is something to be considered along with the other circumstances specified in subs (4). This appears to be consistent with the view of Applegarth J in RD v DB (No. 2) [2011] QSC 124.

The first is the income property and financial resources of each of the parties. To some extent this is dealt with in my earlier reasons on the basis of the evidence put before me at the trial. However the respondent in relation to the question of costs put before me a good deal more information about his current financial position, which broadly speaking shows that it is a good deal worse than I had…

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 KD v Da (No 2)

Details

AGLC: KD v Da (No 2) [2012] QDC 227
Case: [2012] QDC 227
Decision Date: 28 August 2012

CaseChat Overview and Summary

The case of KD v Da (No 2) involves a dispute between the parties over a property settlement following the dissolution of their de facto relationship. The matter was heard in the Family Court of Australia. The primary issue before the court was whether an order for costs was appropriate, considering the conduct of the parties during the proceedings and the effect of an offer to settle.

The court examined the legal principles concerning costs in family law matters, particularly in light of an offer to settle made by one party. The court needed to determine whether the offer was genuine and whether the conduct of the parties justified an order for costs. The court considered the respective positions of the parties, including their contributions to the proceedings and the outcome of the offer to settle.

The court found that the offer to settle was not genuine and that the conduct of the parties did not warrant an order for costs. The court concluded that the offer was made in bad faith and that neither party was entitled to an order for costs. The court emphasised that costs should not be awarded lightly and that the circumstances of each case must be considered carefully.

The final order of the court was that no order as to costs would be made. This decision highlights the importance of the genuineness of offers to settle and the need for careful consideration of the parties' conduct in determining costs in family law matters.

Orders

Orders of the court

No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	KD v DA (No 2) [2012] QDC 227
PARTIES:	KD (Applicant) AND DA (Respondent)
FILE NO/S:	D31/08
DIVISION:
PROCEEDING:	Originating application
ORIGINATING COURT:	District Court, Mt Isa
DELIVERED ON:	28 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	Submissions in writing
JUDGE:	McGill DCJ
ORDER:	No order as to costs.
CATCHWORDS:	DE FACTO RELATIONSHIP – Property Settlement – costs – effect of offer to settle – whether order for costs appropriate. Property Law Act 1974 s 341. RD v DB (No. 2) [2011] QSC 124 – followed.
COUNSEL:	S. Pate (solicitor) for the applicant The respondent appeared in person
SOLICITORS:	Gun Lawyers for the applicant The respondent was not represented