Price v Price

[2020] NSWCA 312

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Price v Price [2020] NSWCA 312

Hearing dates:

25 September 2020

Date of orders:

2 December 2020

Decision date:

02 December 2020

Before:

Basten JA at [1];
Macfarlan JA at [2];
Meagher JA at [48]

Decision:

(1)   Grant leave to appeal.

(2)   Set aside the costs order, being Order 6, made by Pembroke J on 6 February 2020.

(3)   Note that no order is made as to the costs of the proceedings at first instance.

(4)   Order the respondents to pay the applicant’s costs of the proceedings in this Court.

Catchwords:

APPEAL – application for leave to appeal from a costs order – amount in issue substantially less than $100,000 – proper administration of justice required a grant of leave

COSTS – party/party – rule in UCPR r 42.1 that costs prima facie follow the event – orders made by consent without contest or hearing as to the merits – no event for the purposes of UCPR r 42.1 – respondents’ commencement of proceedings precipitous – applicant did not act unreasonably – no order made as to first instance costs

Legislation Cited:

Guardianship Act 1987 (NSW), s 6L

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

CAC v Secretary, Department of Family and Community Services(No 2) [2015] NSWSC 344

Macedonian Church v Eminence Petar (2008) 237 CLR 66; [2008] HCA 42

Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84

Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Category:

Principal judgment

Parties:

Mary Price (Applicant)
Christopher Charles Price (First Respondent)
Elizabeth Therese Macri (Second Respondent)
Elisabeth Christine Theodore (Third Respondent)

Representation:

Counsel:
M Condon SC (Applicant)
L Fermanis (Respondents)

Solicitors:
Dorter Family Lawyers and Mediators (Applicant)
The Norton Law Group (Respondents)

File Number(s):

2020/69978

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity

Date of Decision:

6 February 2020

Before:

Pembroke J

File Number(s):

2020/33029

Judgment

1. BASTEN JA: I agree with Macfarlan JA.

2. MACFARLAN JA: This is an application for leave to appeal from a costs order made by Pembroke J in the Equity Division on 6 February 2020. Whilst this Court would not ordinarily grant leave to appeal against such an order, particularly when the amount involved is substantially less than $100,000, the proper administration of justice requires a grant of leave, as occurred in Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 (see at [1] per Basten JA). As indicated below, the primary judge in the present case made errors of both principle and fact in exercising his costs discretion.

3. The evidence before the primary judge was very limited. The following description of what occurred is based upon the material put before this Court, by way of evidence or concession, upon the basis of which this Court is able to re-exercise the discretion which was not properly…