Marzbani v Embersits - [2019] NSWSC 168

Supreme Court

New South Wales

Medium Neutral Citation: Marzbani v Embersits [2019] NSWSC 168
Hearing dates: 7 February 2019
Decision date: 01 March 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
There be no order as to costs of the proceedings, with the intent that each party should bear his or her own costs of the proceedings.

Catchwords: COSTS — application by plaintiff for specific performance of Family Court consent orders –– costs order sought by each party against the other –– where matter has not been heard on the merits –– conduct of either party not so unreasonable as to warrant a costs order against him or her –– no order made as to costs of the proceedings
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-59
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1 and 42.19
Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333; (1975) 3 WLR 586
Commonwealth of Australia v Gretton [2008] NSWCA 117
Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
One.Tel Ltd v Commisioner of Taxation (2000) 101 FCR 548
Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84
Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Renton v Kelly [2018] NSWSC 1377
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Category: Costs
Parties: Ramin Marzbani (Plaintiff)
Leslie Lynne Embersits (Defendant)
Representation:
Counsel:
Mr N M Bender (Plaintiff)
Mr C Othen (Defendant)
Solicitors:
Atanaskovic Hartnell (Plaintiff)
Diana Perla & Associates (Defendant)

File Number(s): 2018/00150568
Publication restriction: Nil

Judgment

HER HONOUR: In this matter the substantive dispute between the parties was resolved by the making of consent orders on 4 February 2019 pursuant to which the defendant (the plaintiff’s estranged wife) was ordered to execute two deeds of undertaking to give effect to an agreement between the parties that had been noted in orders made in the Family Court of Australia on 10 March 2017 (the Family Court orders). The parties did not, however, agree on who should bear the costs of the proceedings in this Court by which the plaintiff had sought specific performance of that agreement. Each party sought a costs order in his or her favour. I heard argument on that, the sole remaining issue in the proceedings, in the course of the duty list on 7 February 2019. For the following reasons I am of the view that the appropriate order is for the parties to bear his or her own costs of the proceedings.

Background

The background to the dispute can be briefly stated. The plaintiff and the defendant were married in 1996; they separated in February 2010; they have two adult children (neither of whom has yet turned 25); proceedings were commenced in the Family Court for the dissolution of their marriage in 2011; and consent orders disposing of the property aspects of those proceedings were…

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 Marzbani v Embersits

Details

AGLC: Marzbani v Embersits [2019] NSWSC 168
Case: [2019] NSWSC 168
Decision Date: 01 March 2019

CaseChat Overview and Summary

The case of Marzbani v Embersits involved a dispute between the plaintiff and the defendant, with the plaintiff seeking specific performance of Family Court consent orders. The case was heard in the Family Court of Australia. The primary focus of the litigation was whether the plaintiff or the defendant should bear the costs associated with the proceedings, given that the matter had not yet been heard on its merits.

The legal issues that the court had to resolve centred on the allocation of costs in a situation where the dispute had not been resolved on its merits. Both parties had sought an order for costs against the other, arguing that the conduct of the opposing party warranted such an order. The court was required to determine if the conduct of either party was unreasonable enough to justify a costs order and, if so, to whom those costs should be attributed.

In delivering its judgment, the court found that neither party's conduct was so unreasonable as to warrant an order for costs against them. The court noted that the matter had not yet proceeded to a hearing on the merits, and thus there was insufficient evidence of misconduct to justify imposing costs on either party. Consequently, the court made no order as to the costs of the proceedings, reflecting a cautious approach to awarding costs in the absence of a substantive decision on the merits.

Orders