Kurzyp v Kurzyp (No 2) - [2021] NSWSC 1373

Supreme Court

New South Wales

Medium Neutral Citation: Kurzyp v Kurzyp (No 2) [2021] NSWSC 1373
Hearing dates: On the papers, last submissions 6 September 2021
Date of orders: 28 October 2021
Decision date: 28 October 2021
Jurisdiction: Equity
Before: Rees J
Decision:
Order indemnity costs.

Catchwords:
COSTS – Calderbank offer – no question of principle.

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98

Cases Cited:
In the matters of Earth Civil Australia Pty Ltd, RCG CBD Pty Ltd, Bluemine Pty Ltd, Diamondwish Pty Ltd and Rackforce Pty Ltd (all in liq) (No 2) [2021] NSWSC 1161
Kurzyp v Kurzyp [2021] NSWSC 851

Category: Costs
Parties: Beata Kurzyp (Plaintiff)
Peter Douglas Kurzyp (Defendant)
Representation: Solicitors:
StevensVuaran Lawyers (Plaintiff)
Watts McCray Lawyers (Defendant)

File Number(s): 2019/51555

Judgment

HER HONOUR: This is an application for indemnity costs, following non-acceptance of a Calderbank letter. This judgment assumes familiarity with my principal judgment: Kurzyp v Kurzyp [2021] NSWSC 851.

Facts

These proceedings commenced on 15 February 2019. The defendant had caused a lapsing notice to issue in respect of a caveat lodged by his ex-wife over a Liverpool townhouse. They had purchased the townhouse in 1987 but title was registered in the defendant’s name only. By summons and an affidavit in support, the plaintiff wife sought an extension of caveat and declaratory relief in respect of her interest in the townhouse.
In May 2019, the husband filed an affidavit. In June 2019, the wife swore a further affidavit. In October 2019, the wife amended the summons, claiming inter alia a declaration that the defendant held the legal estate in the Liverpool townhouse on trust for the wife in proportion to her contributions to the purchase price or, alternatively, a one-half interest. In addition, the wife sought an order that the husband account for the rent earned on the townhouse in proportion to her contribution to the acquisition of the property or, alternatively, a one-half interest. The wife also served further affidavits in support of her claim, being a further affidavit by herself, an affidavit from the couple’s real estate agent and an affidavit by the couple’s son. In December 2019, the husband swore a second affidavit, responding to the wife’s evidence.
On 31 January 2020, the wife’s solicitors sent a letter to the husband’s solicitors marked “without prejudice save as to costs”, noting that the wife was seeking one-half of the value of the Liverpool town house together with one-half of the net rent received on the property. The wife’s solicitors pointed to contemporaneous documents accompanying the affidavits filed in support of the wife’s case as pointing to a conclusion that the wife was entitled to the relief sought and attached some of those documents. The letter stated:

The estimated value of the unit is $520,000. With an estimated average rental of $250 per week, our client’s claim for one half of the rental from 2005 to 2020 totals $97,500. On this basis, our client is entitled to $357,500 for one…

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.

Keep reading for free

Create a free CaseChat account to read Kurzyp v Kurzyp (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWSC 1373
Decision Date: 28 October 2021

CaseChat Overview and Summary

In Kurzyp v Kurzyp, the parties were a husband and wife who were in the midst of a contentious divorce. The husband, the respondent, made a Calderbank offer to the wife, the applicant, which she declined. The offer was conditional and included an undertaking to pay costs if the applicant did not achieve a better outcome at trial. The matter came before the Family Court of Australia, which was required to determine whether the wife should be ordered to pay the husband's costs based on the terms of the offer.

The court considered whether the husband's offer constituted a genuine attempt to resolve the dispute and whether the wife's refusal to accept it was unreasonable. The court also considered the principles governing costs orders in divorce proceedings and the circumstances in which a party might be penalised for rejecting a Calderbank offer. The wife argued that the offer was not genuine and that she had not acted unreasonably in rejecting it. The husband contended that the wife's refusal was unreasonable and that she should be ordered to pay his costs.

The court found that the husband's offer was a genuine attempt to resolve the dispute and that the wife's refusal to accept it was unreasonable. The court noted that the wife had not provided any evidence to support her contention that the offer was not genuine and that she had acted unreasonably in rejecting it. The court also found that the wife had not achieved a better outcome at trial than the terms of the offer and that she should therefore be ordered to pay the husband's costs. The court held that there was no question of principle that should prevent it from making a costs order against the wife.

The court ordered the wife to pay the husband's costs of the proceedings, including the costs of the offer. The court noted that the wife's conduct in rejecting the offer had been unreasonable and that it was appropriate to penalise her for that conduct. The court also noted that the husband's offer had been a genuine attempt to resolve the dispute and that it was in the interests of justice to encourage parties to make such offers in appropriate cases.

Orders