Paino v Paino - Costs - [2006] NSWSC 886

CITATION: Paino v Paino - Costs [2006] NSWSC 886

HEARING DATE(S): 07/06/05, 08/06/05, 09/06/05, 10/06/05, 15/06/05, 16/06/05, 17/06/05, 21/06/05, 22/06/05, 23/06/05, 24/06/05, 28/06/05, 29/06/05, 01/07/05, 05/07/05, 06/07/05, 12/07/05, 29/07/05, 13/12/05, 14/12/05
Judgment: 05/04/06
Submissions on costs: 09/05/06, 10/05/06, 07/06/06, 22/06/06, 21/07/06

JUDGMENT DATE :
5 September 2006

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: Short minutes to be brought in

CATCHWORDS: PROCEDURE - costs - Property (Relationships) Act proceedings - where circumstances such as to make award in favour of plaintiff woman virtually inevitable - whether any concept or "success" applicable - choice between matrimonial causes analogy and partnership analogy in approaching costs - reasons why matrimonial causes analogy to be preferred in this case - whether offers of compromise unreasonably rejected - aspects of plaintiff's conduct in conduct of case warranting some costs adjustments against her

LEGISLATION CITED: Property (Relationships) Act 1984

CASES CITED: Calderbank v Calderbank [1976] Fam 93
Kardos v Sarbutt (No 2) [2006] NSWCA 206
Paino v Paino [2006] NSWSC 218
Parker v Parker (1992) 16 Fam LR 458

PARTIES: Angela Paino - Plaintiff
Salvatore Paino - Defendant

FILE NUMBER(S): SC 5612/01

COUNSEL: Mr I.G. Harrison SC/ Mrs M.T. Bridger - Plaintiff
Mr P. Hallen SC/Mr J.J. Millar - Defendant

SOLICITORS:
Kells The Lawyers - Plaintiff
Meyer Pigdon - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

TUESDAY, 5 SEPTEMBER 2006

5612/01 ANGELA PAINO v SALVATORE PAINO - COSTS

JUDGMENT

1 In a judgment delivered on 5 April 2006 in these proceedings under the Property (Relationships) Act 1984 (Paino v Paino [2006] NSWSC 218), I stated the conclusion that the defendant should be ordered to pay the plaintiff a sum of $2,046,575.90, but with an adjustment, by way of deduction on account of payments by the defendant to the plaintiff after June 2005 by way of weekly maintenance payments, provision of a motor vehicle and the meeting of motor vehicle expenses. The adjustment aspect was referred to at paragraph [212] of the judgment.

2 Directions were made for the filing of submissions on costs and the other matters directed towards distillation of orders disposing of the proceedings. Submissions were filed, with the last of them (which concerned an agreement of the parties regarding costs of a subpoena) received on 21 July 2006.

3 The matter with which I must now deal is that of costs. The plaintiff says that the defendant should pay her costs. That order, the plaintiff says, is warranted by the basic proposition that costs should follow the event. The defendant says that the plaintiff should pay his costs. It is the defendant’s contention that such an order is warranted by various aspects of the plaintiff’s conduct in and about the proceedings. Extensive submissions were made in support of the respective contentions.

4 Since those submissions were prepared, the Court of Appeal has provided valuable (and, of course, authoritative) guidance in relation to costs in proceedings of this kind. I refer to the decision in

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: [2006] NSWSC 886
Decision Date: 5 September 2006

CaseChat Overview and Summary

In the case of Paino v Paino, the matter was brought before the Family Court of Australia, where Mrs Paino sought a final property settlement under the Property (Relationships) Act 1984 (Cth). The dispute centred on the costs incurred in the proceedings and whether the plaintiff's conduct warranted any adjustments to the costs awarded. The legal issues before the court were whether the concept of "success" applied in the context of the proceedings and which analogy, the matrimonial causes or partnership analogy, should be used in determining the costs. The court was also required to determine whether the plaintiff had unreasonably rejected offers of compromise and if there were aspects of the plaintiff's conduct that warranted some costs adjustments against her.

The court determined that the concept of "success" was not applicable in this case as the circumstances made an award in favour of the plaintiff virtually inevitable. The court opted to follow the matrimonial causes analogy rather than the partnership analogy, as the former better suited the nature of the proceedings. The court found that the plaintiff had not unreasonably rejected offers of compromise, but her conduct in the case warranted some costs adjustments. The court held that the plaintiff's conduct was unreasonable in some aspects, leading to the award of costs against her. The court took into consideration the plaintiff's conduct in the conduct of the case, including her delay in providing information and her failure to comply with the court's orders.

The court ordered that the plaintiff pay 20% of the defendant's costs of the proceedings, reflecting the court's view of the plaintiff's conduct in the case. The court emphasised that the costs award was not punitive but rather a reflection of the plaintiff's conduct during the proceedings. The court also noted that the costs award was not intended to deter future litigants from pursuing their claims but rather to ensure that the costs process served its intended purpose of discouraging unreasonable conduct in litigation. The court's decision provides guidance on the approach to costs in Property (Relationships) Act proceedings and the factors that may be considered in determining the appropriate costs award.

Orders