N, A-B v v, AM (No 2) - [2017] SASCFC 174

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application)
N, A-B v V, AM (No 2)
[2017] SASCFC 174
Judgment of The Full Court
(The Honourable Justice Nicholson, The Honourable Justice Bampton and The Honourable Justice Hinton)
22 December 2017
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - REOPENING APPEAL
Application for costs following successful appeal which reversed in part trial Judge's orders.
Application to re-open appeal.
Held:
1.       Ms V’s application to re-open the appeal is dismissed.
2.       Ms V is to pay Mr N’s costs of the appeal to be taxed by a Supreme Court Master on a lump sum basis if not agreed.
3.       There is to be no order as to costs with respect to the trial, that is, each party is to bear their own costs of and incidental to the trial of this matter.
4.       Order 4 of the principal reasons is to be amended so as to read “The matter is remitted to a Master of the Supreme Court to make such further orders as are necessary so as to conform to these reasons”.
5.       Order 5 of the principal reasons is to be amended to read “Liberty to either party to apply to a Master of the Supreme Court on short but reasonable notice to the other side”.
Domestic Partners Property Act 1996 (SA), referred to.
Ventura v Sustek (1976) 14 SASR 395; Orr v Holmes (1948) 76 CLR 632; Orchard v Orchard (1972) 3 SASR 89, considered.

N, A-B v V, AM (No 2)
[2017] SASCFC 174
Full Court: Nicholson, Bampton and Hinton JJ
NICHOLSON J.

These reasons should be read in conjunction with the judgment and principal reasons earlier delivered in this matter.[1] By its principal reasons, this Court allowed an appeal by Mr N from a District Court judgment and in particular against the order made by the Judge that there be no adjustment of either party’s one-half share interest in a residential property described as the Greenhill property. On appeal, this Court set aside that order and ordered instead that Mr N was to receive 60 per cent and Ms V 40 per cent of the net proceeds of sale after discharge of the ANZ mortgage on the title and costs of sale. Various other consequential orders were made.
[1] N, A-B v V, AM [2017] SASCFC 147.
The fundamental issue between the parties both at the trial and on appeal was as to whether the parties’ joint and equal legal interest in the Greenhill property should be adjusted in some way following the termination of their domestic partnership. After the delivery of the judgment on appeal, the parties were invited to make submissions as to the questions of the costs of the appeal and the costs of the trial. In this latter respect, the Judge had…

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 N, A-B v v, AM (No 2)

Details

AGLC: N, A-B v v, AM (No 2) [2017] SASCFC 174
Case: [2017] SASCFC 174
Decision Date: 22 December 2017

CaseChat Overview and Summary

This matter came before the Full Court of the Supreme Court of South Australia, comprising Nicholson, Bampton, and Hinton JJ. The dispute concerned the costs of an appeal and the trial, as well as the appropriate forum for further directions. One party, Ms V, sought to re-open the appeal, while the other, Mr N, sought orders regarding the costs of the appeal and the trial.

The primary legal issues before the court were whether Ms V's application to re-open the appeal should be granted, how the costs of the appeal should be determined, and whether the parties should bear their own costs of the trial. Additionally, the court considered the appropriate venue for the remission of the matter for further orders and taxation of costs.

The court dismissed Ms V's application to re-open the appeal. It was ordered that Ms V pay Mr N's costs of the appeal, to be taxed by a Supreme Court Master on a lump sum basis if not agreed. In relation to the trial, the court made no order as to costs, meaning each party was to bear their own costs. The court also amended orders from the principal reasons to ensure that the matter was remitted to a Master of the Supreme Court, rather than a Master of the District Court, for the making of further orders and for liberty to apply.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NICHOLSON J

One further matter concerns orders 4 and 5 in the principal reasons. By order 4 it was directed that the matter be remitted to a Master of the District Court to make such further orders as are necessary so as to conform with these reasons. By order 5 liberty was granted to either party to apply to a Master of the District Court on short but reasonable notice to the other side. Given that Mr N’s costs of the appeal are to go to a Supreme Court Master for taxation in the absence of agreement as to those costs and given the desirability of limiting, as far as possible, further expense and inconvenience to the parties in attempting to resolve outstanding matters as expeditiously as possible, I would amend orders 4 and 5 in the principal reasons to provide that the matter be remitted to a Master of the Supreme Court rather than a Master of the District Court. Conclusion I would make the following orders:1.Ms V’s application to re-open the appeal is dismissed.2.Ms V is to pay Mr N’s costs of the appeal to be taxed by a Supreme Court Master on a lump sum basis if not agreed.3.There is to be no order as to costs with respect to the trial, that is, each party is to bear their own costs of and incidental to the trial of this matter.4.Order 4 of the principal reasons is to be amended so as to read “The matter is remitted to a Master of the Supreme Court to make such further orders as are necessary so as to conform to these reasons”.5.Order 5 of the principal reasons is to be amended to read “Liberty to either party to apply to a Master of the Supreme Court on short but reasonable notice to the other side. I agree with the orders proposed by Nicholson J. I agree.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

Full text does not contain this section.