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M, Da v P, N (No2)

M, Da v P, N (No2)

Case [2008] SADC 180 23 December 2008

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District Court of South Australia
(Civil)
M, DA v P, N (NO2)
[2008] SADC 180
Judgment of His Honour Judge Beazley (ex tempore)
23 December 2008
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS
Costs - property adjustment proceedings pursuant to ss 10 and 11 of the De Facto Relationships Act (1996) - no principle that each party ought bear its own costs - plaintiff obtains judgment which exceeds the filed offer of the defendant - filed offer not "adequate" - nothing in conduct of the plaintiff to alter position that cost follow the event - plaintiff seeks order certifying the costs as fit for senior counsel but not for two counsel - order that certified for senior counsel but not for two counsel - defendant must pay the plaintiff's costs on a party/party basis to be agreed or taxed.
Interest - plaintiff's claim effectively for a monetary sum - both parties conducted the trial on basis that a monetary sum was payable to plaintiff - defendant has had the benefit of the use of the money since trial - plaintiff entitled to interest at 6.5% p.a. from date of trial to date of judgment.
De Facto Relationships Act 1996 ss 10, 11; District Court Act 1991 s 30 referred to; District Court Rules (1987) Rule 101.02(1), referred to.
Kardos v Sarbutt (No2) (2006) NSWCA 206; Ewins v BHP Billiton Ltd (No2) [2005] SASC 164; ASIC v West (2008) 100 SASR 496, not followed.
Hogg v Roberts (2003) 87 SASR 248 at 255; Dunstan v Rickwood (No2) (2007) NSWCA 266, considered.

M, DA v P, N (NO2)
[2008] SADC 180
Ex Tempore
23 December 2008
Introduction

On 15 December 2008 I delivered reasons in which I intimated that I would make formal orders that:
1.     The defendant pay to the plaintiff the lump sum of $650,000.
2.That the defendant cause the company Minoan Investments Pty Ltd to transfer:
2.1    to the plaintiff the unencumbered legal title to the Honda motor vehicle presently in her possession.
2.2    to a superannuation fund to be nominated by the plaintiff the sum of $6,270 standing to the credit of the plaintiff in the Minoan Investments Superannuation Fund.
I then adjourned the matter until today to enable the parties to consider those reasons, the form of the proposed orders, and any issues as to costs and interest.
The form of order
Minutes of order were prepared by the plaintiff’s solicitors. They set out a process by which the “family home” at Le Fevre Terrace North Adelaide could be sold, thereby freeing up sufficient funds to pay the lump sum I have awarded to the plaintiff. I was informed that the plaintiff had lodged caveats over the respective freeholds held in the defendant’s name, and in the name of companies controlled by him. As it transpires the parties did not have the opportunity of discussing the draft form of orders. I was informed by counsel for the defendant, Mr Heywood-Smith QC…

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 M, Da v P, N (No2)

Details

AGLC: M, Da v P, N (No2) [2008] SADC 180
Case: [2008] SADC 180
Decision Date: 23 December 2008

CaseChat Overview and Summary

In the case of M, Da v P, N (No2), the parties were engaged in a dispute concerning property adjustment proceedings pursuant to sections 10 and 11 of the De Facto Relationships Act 1996. The plaintiff sought a property settlement following the termination of a de facto relationship with the defendant. The Federal Circuit Court was tasked with determining the appropriate costs and interest to be awarded in this matter.

The legal issues before the court included the apportionment of costs between the parties and the calculation of interest on the monetary sum awarded to the plaintiff. Specifically, the court had to decide whether the plaintiff was entitled to costs on a party/party basis and whether interest should be awarded from the date of trial to the date of judgment.

The court held that there was no principle mandating that each party bear its own costs in property adjustment proceedings. Given that the plaintiff's judgment exceeded the defendant's filed offer, which was deemed inadequate, the plaintiff was entitled to costs. The court also ruled that the plaintiff was entitled to interest at 6.5% per annum from the date of trial to the date of judgment, as the defendant had benefitted from the use of the money since the trial. The court further determined that the plaintiff's costs should be certified for senior counsel but not for two counsel, and that the defendant must pay the plaintiff's costs on a party/party basis, to be agreed upon or taxed.

The court's final orders included a certification of costs for senior counsel but not for two counsel, and an award of interest at 6.5% per annum from the date of trial to the date of judgment. The defendant was directed to pay the plaintiff's costs on a party/party basis, to be agreed upon or taxed.

Orders