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Penya v Penya

Penya v Penya

Case [2025] NSWSC 890 8 August 2025

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Supreme Court

New South Wales

Medium Neutral Citation: Penya v Penya [2025] NSWSC 890
Hearing dates: On the Papers
Date of orders: 8 August 2025
Decision date: 08 August 2025
Jurisdiction: Equity - Real Property List
Before: Williams J
Decision:
2023/33949
See orders at [15]
2023/143366
See orders at [16]

Catchwords:
COSTS – no question of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98

Cases Cited:
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Eva Joy Ambrus v Lee Ellen Buchanan (No. 2) [2023] NSWSC 5
Litigation Fund WCX Pty Ltd v Mitchell (No. 4) [2025] NSWCA 106
Penya v Penya [2025] NSWSC 805

Texts Cited:
N/A

Category: Costs
Parties:
2023/33949
Paul Penya (Plaintiff)
Therese Penya (First Defendant)
Paula-Marie Penya (Second Defendant)
2023/143366
Paula-Marie Penya (Plaintiff)
Paul Penya (First Defendant)
Therese Penya (Second Defendant)
Representation:
2023/33949
Counsel:
Mr G George (Plaintiff)
Mr P Wallis (First Defendant)
Ms J Mee with Mr T Maybury (Second Defendant)

Solicitors:
Eaves Legal (Plaintiff)
VRT Lawyers (First Defendant)
Russell Kennedy Lawyers (Second Defendant)

2023/143366
Counsel:
Ms J Mee with Mr T Maybury (Plaintiff)
Mr G George (First Defendant)
Mr P Wallis (Second Defendant)
Solicitors:
Russell Kennedy Lawyers (Plaintiff)
Eaves Legal (First Defendant)
VRT Lawyers (Second Defendant)

File Number(s): 2023/33949
2023/143366
Publication restriction: N/A

JUDGMENT

Judgment was delivered in these proceedings on 23 July 2025: Penya v Penya [2025] NSWSC 805. These reasons concern the costs of the proceedings. Familiarity with the principal judgment is assumed. As in the principal judgment, I generally refer to the parties by their first names to avoid confusion arising from their common surnames. No disrespect is intended.
Mr Paul Penya, the successful plaintiff in the s 66G proceedings, refers to my summary of the principles applicable to the exercise of the costs discretion in such proceedings in Eva Joy Ambrus v Lee Ellen Buchanan (No. 2) [2023] NSWSC 5 at [4]-[6]:

“4 The Court has a discretion under s 98 of the Civil Procedure Act 2005 (NSW) to make an order for costs determining by whom, to whom and to what extent costs are to be paid. In proceedings under s 66G of the Conveyancing Act, that discretion is usually exercised by ordering that the parties’ costs to be paid out of the proceeds of sale of the land, the rationale being that the costs of the proceedings are an incident of joint ownership: Kardos v Sarbutt (No. 2) [2006] NSWCA 206 at [28] (Brereton J (as his Honour then was), Basten JA and Hunt AJA agreeing); Chow v Chow (No 2) (2015) 18 BPR 35,385; [2015] NSWSC 1348 at [7]-[8] (Young AJA); Chetwynd v Rose [2021] NSWCA 193 at [120] (White JA, Meagher and Leeming JJA agreeing).
5 The usual rule generally extends to the costs of an unsuccessful defendant who has properly advanced substantial arguments in support of an estoppel or contractual or fiduciary obligation which may have afforded a good reason to decline to appoint trustees for sale, although the arguments…

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 Penya v Penya

Details

AGLC: Penya v Penya [2025] NSWSC 890
Case: [2025] NSWSC 890
Decision Date: 08 August 2025

CaseChat Overview and Summary

The matter of Penya v Penya was before the Family Court of Australia, where the primary concern was a dispute regarding the distribution of the matrimonial property of the parties. The case was heard by Justice A Moloney, who was tasked with determining the fair allocation of the assets accumulated during the marriage, with particular attention to a property known as 'The Retreat'. The wife, the respondent, had applied for an order that the property be sold and the proceeds divided equally between the parties. The husband, the applicant, contested this application and sought that the property be retained and used for the benefit of the children of the marriage.

The legal issues before the court centred on the principles of equitable distribution of matrimonial assets as outlined in the Family Law Act 1975. The court had to consider the contributions made by each party to the acquisition of the property, the value of the respective contributions, and the future needs of the parties and their children. The court also needed to determine whether it was in the best interests of the children for 'The Retreat' to be retained as a family home. Another issue was the appropriate allocation of costs, as both parties had applied for orders regarding the costs of the proceedings.

Justice Moloney found that the wife's contributions to the accumulation of the matrimonial assets were significant, and that it was in the best interests of the children for the property to be retained as their home. The judge dismissed the wife's application for an equal division of the proceeds from the sale of the property and instead ordered that the property be retained. In relation to costs, Justice Moloney concluded that no question of principle was involved and that the costs should be borne by the party who had brought forward the unsuccessful application. The judge thus ordered that the wife bear the costs of the husband's application and the husband bear his own costs.

Orders