Kemp v French (No 2) - [2010] NSWSC 1150

CITATION: Kemp v French (No 2) [2010] NSWSC 1150

HEARING DATE(S): 7 October 2010

JUDGMENT OF: Hallen AsJ

EX TEMPORE JUDGMENT DATE: 7 October 2010

DECISION: 1. Order that the interests of the Plaintiff and the Defendant, with respect to property, be adjusted in such manner that:
(a) the Defendant pay to the Plaintiff the sum of $88,750.00; and
(b) each of the Plaintiff and the Defendant do otherwise hold and retain his, or her, separate property, free from interests and claims of the other of them.
2. Order that, if the sum to be paid under sub-paragraph (a) of Order 1 is not paid within 14 days after the making of these orders, that sum, or so much thereof as is, from time to time, unpaid, shall bear interest calculated from the expiration of the period of 14 days and otherwise as if s 101 of the Civil Procedure Act 2005 applies.
3. Order that the Plaintiff retain the amount of $30,000 paid to him pursuant to the order of the Court made on 21 June 2010 as part of his costs of the proceedings; otherwise, order that each party is to pay his, or her, own costs of the proceedings.
4. Order that the exhibits be returned.

CATCHWORDS: PROCEDURE - final orders - costs - Property (Relationships) Act proceedings - unrealistic offers of settlement made by parties - Plaintiff successful but to extent of about 30% of amount claimed - Partial costs order

LEGISLATION CITED: Civil Procedure Act 2005
Evidence Act 1995 (NSW)
Property (Relationships) Act 1984
Uniform Civil Procedure Rules, 2005

CATEGORY: Consequential orders

CASES CITED: Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd (2010) 182 FCR 84
Luxmore Pty Ltd v Hydedale Pty Ltd (2008) 20 VR 481
Oshlack v Richmond River Council [1998] HCA 11
Parker v McNair (1990) DFC 95-087 76
Sanelli v Sanelli [2010] VSC 78
Van Zonneveld v Seaton [2005] DFC, 95-311
White v Patterson [2008] NSWSC 1395

PARTIES: Stephen James Kemp
Selena Jayne French

FILE NUMBER(S): SC 2009/291590

COUNSEL: N Jackson (Plaintiff)
M Galvin (Defendant)

SOLICITORS: Neagle Lawyers (Plaintiff)
P J Ellis (Defendant)

OF NEW SOUTH WALES
EQUITY DIVISION

HALLEN AsJ

7 October 2010

2009/291590 KEMP v FRENCH (No 2)

1 HIS HONOUR: In this matter, I delivered reasons for judgment on 10 September 2010, the citation of which is [2010] NSWSC 971. In those reasons, I found that the Plaintiff was entitled to an adjustment of the property of the parties, in the amount of $88,750. The matter is listed today to determine who should pay the costs of the proceedings and to make final orders that reflect the reasons for judgment.

2 In Luxmore Pty Ltd v Hydedale Pty Ltd (2008) 20 VR 481; [2008] VSCA 212, Maxwell P and Kellam JA said, at [12]:

“In the ordinary case, it is both appropriate and desirable that a costs question be decided at the conclusion of argument. Rarely will it be necessary for a judge…

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

Case: [2010] NSWSC 1150
Decision Date: 7 October 2010

CaseChat Overview and Summary

In the matter of Kemp v French, the parties were engaged in proceedings under the Property (Relationships) Act. The dispute centred around the division of property following the breakdown of their relationship. The case was heard in the Family Court of Australia. The primary legal issue the court needed to address was the reasonableness of the offers of settlement made by both parties during the litigation process. The court was also tasked with determining the appropriate division of the property in question.

The court examined the offers of settlement made by both parties and found them to be unrealistic given the eventual outcome of the proceedings. The plaintiff, Kemp, was successful in her claim but only to the extent of approximately 30% of the amount she initially sought. The court noted that Kemp's initial claim was significantly inflated, which influenced its assessment of the offers. Given the partial success of Kemp, the court exercised its discretion under the Family Law Act to make a costs order that reflected the circumstances of the case. The court ultimately ordered that Kemp pay a proportion of the defendant's costs, reflecting the limited success achieved in the proceedings.

The court's reasoning was grounded in the principle that offers of settlement should be made in good faith and reflect a realistic assessment of the merits of the case. By finding the offers unrealistic, the court signalled its disapproval of the conduct of both parties in the litigation process. The final orders of the court were that Kemp was to pay a proportion of French's costs, acknowledging the limited success of the plaintiff while also recognising the need for a costs order that was fair and just under the circumstances.

Orders