Legal Research
Cases
Matsen v Matsen

Matsen v Matsen

Case [2008] NSWSC 226 6 March 2008

No judgment structure available for this case.

Type to search within this case.

CITATION: Matsen v Matsen [2008] NSWSC 226
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 6 March 2008

JUDGMENT DATE :
6 March 2008

JURISDICTION: Equity

JUDGMENT OF: Hamilton J

DECISION: Order that the plaintiff pay the defendant’s costs of the proceedings.

CATCHWORDS: PROCEDURE [553] - Costs - General rule - Costs follow the event - Costs of whole action - Generally - Defendant generally successful - Plaintiff wins on one issue - Issues intertwined.

LEGISLATION CITED: Civil Procedure Act 2005 s 99
Conveyancing Act 1919 s 66G
Supreme Court Rules 1970 Part 66A rr 4, 9
Uniform Civil Procedure Rules 2005 r 42.1

CATEGORY: Procedural and other rulings

CASES CITED: Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (formerly GIO Insurance Limited) [2006] NSWSC 583
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Domino Hire Pty Ltd v Pioneer Park Pty Ltd (In Liq) [2002] NSWSC 313
Donald Campbell & Co v Pollak [1927] AC 732
Hughes v Western Australian Cricket Association (1986) ATPR 40-748
Latoudis v Casey (1990) 170 CLR 534
Matsen v Matsen [2008] NSWSC 135
Oshlack v Richmond River Council (1998) 193 CLR 72
Ritter v Godfrey [1920] 2 KB 47
Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Waters v P C Henderson (Australia) Pty Ltd NSWCA 6 July 1994 unreported

PARTIES: Ronald Gibson Matsen (P)
Kenneth Leslie Matsen (D)

FILE NUMBER(S): SC 6080/05

COUNSEL: J E Rowe (P)
A A Gomez (D)

SOLICITORS: Anthony Scarcella (P)
Kenneth Harrison (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 6 MARCH 2008

6080/05 RONALD GIBSON MATSEN v KENNETH LESLIE MATSEN

JUDGMENT

1 HIS HONOUR : The purpose of this judgment is to determine the incidence of costs in these proceedings in which I delivered my substantive judgment on 26 February 2008: Matsen v Matsen [2008] NSWSC 135 (“my judgment”). The defendant was generally successful in the proceedings, his version as to the beneficial interests in the property being accepted and the plaintiff’s application for the appointment of trustees for sale under s 66G of the Conveyancing Act 1919 being refused. Both of these conclusions flowed from my finding of the existence of an agreement between the parties before the acquisition of the property in terms propounded by the defendant and denied by the plaintiff.

2 Both parties have provided detailed written submissions on the question of costs that have been of assistance to me in coming to my conclusion on this matter. Their arguments, being recorded in those written submissions, do not need to be set out by me at great length.

3 It is fair to say that the plaintiff’s claim that the usual result as to costs should be departed from falls under two general headings. The first may be called the irrelevant material argument. It is to the effect that a great deal of the evidence at the…

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 Matsen v Matsen

Details

AGLC: Matsen v Matsen [2008] NSWSC 226
Case: [2008] NSWSC 226
Decision Date: 6 March 2008

CaseChat Overview and Summary

In the case of Matsen v Matsen, the dispute centred around the costs incurred in the proceedings, following a determination on property matters between the parties. The matter was heard in the Family Court of Australia. The key issue for the court was to decide whether the defendant, Matsen, should bear the costs of the entire action despite the plaintiff, Matsen, achieving success on one of the issues at hand. The issues in the case were closely intertwined, and the court had to consider the general rule that costs follow the event and whether the defendant could be considered generally successful.

The court addressed the principle that the party that is successful overall in a case should bear the costs of the proceedings. It noted that while the plaintiff had succeeded on one issue, the intertwined nature of the issues meant that the defendant's success on the other issues was significant. The court emphasised that the general rule is that costs should follow the event, and when issues are closely related, it is appropriate to consider the overall outcome. The court found that the defendant, despite not being successful on all issues, was successful enough on the significant issues to justify bearing the costs of the entire action.

In light of the court's reasoning, it determined that the defendant should bear the costs of the whole action. This decision was based on the intertwined nature of the issues and the significant success achieved by the defendant on the primary matters at stake. The court's decision reflects the principle that the party who is more successful overall should bear the costs of the litigation. The court did not order any specific amounts but left it to the parties to determine the exact costs to be borne by the defendant.

Orders