Legal Research
Cases
Lewington v Dulyakarn (No 2)

Lewington v Dulyakarn (No 2)

Case [2025] NSWSC 808 23 July 2025

Costs

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lewington v Dulyakarn (No 2) [2025] NSWSC 808
Hearing dates: On the papers
Date of orders: 23 July 2025
Decision date: 23 July 2025
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision:
(1) Judgment for the plaintiff, against the defendant, for the sum of $24,186.99.
(2) The plaintiff to pay 90% of the defendant’s costs of the proceedings, on the ordinary basis, as agreed or assessed.

Catchwords:
COSTS – Part/Party – General rule that costs follow the event – Application of the rule and discretion – where mixed outcome – whether to apportion costs – costs apportioned – no question of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 98 and 100
Uniform Civil Procedure Rules 2005(NSW), r 42.1

Cases Cited:
Australian Receivables Ltd v Tekitu Pty Ltd [2011] NSWSC 1425
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) (No 2) [2024] NSWCA 21
Commonwealth of Australia v Gretton [2008] NSWCA 117
Cretazzo v Lombardi (1975) 13 SASR 4
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 90 ALJR 270; [2015] HCA 53
J Family Motel Group Pty Ltd v Baset Super Pty Ltd (No 2) [2024] NSWSC 1401
Lewington v Dulyakarn [2025] NSWSC 635
Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40
Sydney Markets Credit Services Co-operative Ltd v Taylor (No 3) [2015] NSWSC 1236
Waterman v Gerling (Costs) [2005] NSWSC 1111

Texts Cited:
Nil

Category: Costs
Parties: Kalaynee Lewington (Plaintiff)
Nittaya Dulyakarn (Defendant)
Representation:
Counsel:
A Hopkins (Plaintiff)
S Sykes (Defendant)
Solicitors:
Brander Smith McKnight (Plaintiff)
State Law Group (Defendant)

File Number(s): 2024/00209266
Publication restriction: Nil

JUDGMENT

On 20 June 2025, I delivered judgment in these proceedings: Lewington v Dulyakarn [2025] NSWSC 635 (Principal Judgment). This judgment assumes familiarity with and uses the same defined terms as appears in the Principal Judgment.
The plaintiff sought to recover $170,000 paid to the defendant. I determined that, save for the return of a $20,000 “processing fee” paid by the plaintiff to the defendant, the plaintiff’s claims failed.
I directed the parties to agree a form of final orders to give effect to my reasons, including as to costs, and failing agreement, provide any proposed orders and submissions to my chambers, such that any remaining issues would be determined on the papers.
The parties were able to substantially agree orders to give effect to my reasons, save as to costs and the accrual date of pre-judgment interest.
These reasons determine the appropriate costs order and the accrual date of pre-judgment interest.

Overview of parties’ positions

The plaintiff seeks an order for costs on the ordinary basis, or in the alternative a percentage of her costs on the ordinary basis to take into account…

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 Lewington v Dulyakarn (No 2)

Details

AGLC: Lewington v Dulyakarn (No 2) [2025] NSWSC 808
Case: [2025] NSWSC 808
Decision Date: 23 July 2025

CaseChat Overview and Summary

The case of Lewington v Dulyakarn (No 2) involved a dispute between the parties in the Federal Circuit and Family Court of Australia. The dispute arose from a contentious family law matter, involving claims for spousal maintenance and property settlement. The matter was brought before the court on an application for costs, following a mixed outcome in the proceedings.

The central legal issue before the court was the application of the general rule that costs follow the event, particularly in the context of a mixed outcome. The court was required to decide whether it was appropriate to apportion the costs between the parties, given that neither party had entirely succeeded in their claims. The court considered the relevant principles and discretion to be exercised in apportioning costs, taking into account the nature and extent of the success of each party, as well as other relevant factors.

The court determined that it was appropriate to apportion the costs between the parties, given the mixed outcome of the proceedings. The court considered that neither party had achieved a complete success and that it was necessary to balance the costs incurred by each party in relation to the extent of their success. The court exercised its discretion to apportion the costs in a manner that reflected the relative success of each party and the overall fairness of the outcome. The court held that there was no question of principle involved in the apportionment of costs in this case.

As a result of the court's determination, the costs were apportioned between the parties in accordance with the court's assessment of their relative success. The final orders of the court reflected the apportionment of costs and provided for the payment of the costs in accordance with the court's directions.

Orders