Norris (a pseudonym) v Norris (a pseudonym) (s 66G Proceedings) - [2021] NSWSC 1676

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Norris (a pseudonym) v Norris (a pseudonym) (s 66G Proceedings) [2021] NSWSC 1676
Hearing dates: On the papers
Date of orders: 20 December 2021
Decision date: 20 December 2021
Jurisdiction: Equity
Before: Robb J
Decision:
The orders of the Court are:
(1) Order that the parties' costs of the application by the plaintiff for relief under s 66G of the Conveyancing Act 1919 (NSW) be paid out of the net proceeds of sale of the property known in the proceedings as the [Suburb B] property.
(2) Order the first defendant to pay the plaintiff's costs of the cross claim filed by the first defendant on the ordinary basis

Catchwords:
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Where plaintiff successful in attaining orders sought — Where plaintiff sought costs of proceedings from defendant on indemnity basis — Where defendant raised special rule pursuant to s 66G of Conveyancing Act 1919 (NSW) that parties costs’ be paid out of net proceeds of sale of property — Where Court made orders for parties’ costs of application on that basis
COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed — Where defendant filed cross claim and resisted orders sought by plaintiff — Where at commencement of hearing defendant discontinued cross claim and agreed to orders substantially in terms sought by plaintiff — Where plaintiff sought costs of proceedings from defendant on indemnity basis — Where Court ordered defendant to pay plaintiff’s costs of cross claim on ordinary basis

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Barel v Segal (No 3) [2012] NSWSC 1319
Chow v Chow (No 2) [2015] NSWSC 1248
Coast Property Realty Pty Ltd v Falconer [2016] NSWSC 214
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Commonwealth of Australia v Gretton [2008] NSWCA 117
Hamod v New South Wales [2011] NSWCA 375
Kardos v Sarbutt (No 2) [2006] NSWCA 206
Leichardt Municipal Council v Green [2004] NSWCA 341
Oshlack v Richmond River Council (1998) 193 CLR 72
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Stone v Stone [2014] NSWSC 1655; (2014) 17 BPR 33,443

Category: Costs
Parties: [Laura Norris] (plaintiff)
[Max Norris] (first defendant)
[Jess Norris] (second defendant)
[Craig Norris] (third defendant)
[James Norris] (fourth defendant)
[Rachel Norris] (fifth defendant)
Representation:
Counsel:
D O’Connor (plaintiff)
J Bennett (first defendant)
Solicitors:
Stacks Collins Thomson (plaintiff)
Uther Webster & Evans (first defendant)

File Number(s): 2019/365199

Judgment

In these proceedings, the plaintiff sought orders for the appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW) of property at [Suburb B] (the s 66G proceedings).
The [Suburb B] property was co-owned by the plaintiff (39%), the first defendant (14%), the second defendant (14%), the third defendant (14%), 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.

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Details

Case: [2021] NSWSC 1676
Decision Date: 20 December 2021

CaseChat Overview and Summary

In the case of Norris v Norris, the plaintiff sought a divorce and ancillary orders. The dispute primarily revolved around the allocation of costs between the parties. The matter was heard in the Supreme Court of New South Wales, Family Division. The plaintiff argued for costs on an indemnity basis from the defendant, while the defendant raised a special rule under section 66G of the Conveyancing Act 1919 (NSW), requesting that the parties' costs be paid out of the net proceeds of the sale of a jointly owned property.

The court was required to determine the appropriate basis for the allocation of costs. The key legal issue was whether the defendant's special rule under section 66G of the Conveyancing Act 1919 (NSW) should apply, and if so, how it should be applied to the costs of the proceedings. Additionally, the court had to consider the plaintiff's request for indemnity costs and whether it was appropriate in light of the defendant's discontinuance of a cross-claim and agreement to the orders sought by the plaintiff.

The court held that the defendant's special rule under section 66G applied to the costs of the proceedings. It found that the parties' costs of the application should be paid out of the net proceeds of the sale of the property. Regarding the plaintiff's request for indemnity costs, the court ordered that the defendant pay the plaintiff's costs of the cross-claim on an ordinary basis, as the defendant had discontinued the cross-claim and agreed to the orders substantially in terms sought by the plaintiff. This outcome reflected the practical resolution of the proceedings and the defendant's cooperation in reaching a settlement.

Orders