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Priestley v Priestley (No 2)

Priestley v Priestley (No 2)

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Case Copied 25 August 2016 27 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Priestley v Priestley (No. 2) [2016] NSWSC 1259
Hearing dates: 25 August 2016
Decision date: 25 August 2016
Jurisdiction: Equity
Before: White J
Decision:
1 Order that the defendant pay 60 per cent of the plaintiff's costs.
2 Order that the defendant’s costs be paid out of the estate on the indemnity basis.

Catchwords: PRACTICE AND PROCEDURE — Costs — Rule 42.1 Uniform Civil Procedure Rules 2005 — General rule — Costs follow the event — Plaintiff recovered judgment for a substantial sum — Plaintiff successful on only one of three substantive claims — Whether plaintiff entitled to an order that the defendant pay all of his costs — Defendant’s success on dominant issue justifies discounting plaintiff’s entitlement to costs — Defendant to pay 60 per cent of plaintiff’s costs
Legislation Cited: Civil Procedure Act 2005 (NSW)
District Court Act 1912 (NSW)
Cases Cited: AT v Cmr of Police NSW (No 2) [2010] NSWCA 337
Bartlett v Australia & New Zealand Banking Group Ltd [2016] NSWCA 30
Bennette v Cohen (No 2) [2009] NSWCA 162
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Bowen Investments v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107
Coastwide Fabrication & Erection Pty Ltd v Honeysett (No 2) [2009] NSWCA 291
Cretazzo v Lombardi (1975) 13 SASR 4
Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; (2008) 75 NSWLR 462
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145
Habib v Nationwide News Pty Ltd (No 2) [2010] NSWCA 291
Hancock v Arnold (No 2) [2009] NSWCA 19
Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748
Jelbarts Pty Ltd v McDonald [1919] VLR 478 and in New South Wales in Walker v The Public Trustee (1929) 46 WN (NSW) 166
Kable v State of New South Wales (No 2) [2012] NSWCA 361
Malouf v Prince (No 2) [2010] NSWCA 51
McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 306
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (No 2) [2014] NSWCA 425
Myers v Defries (1880) 5 Ex D 180
Permanent Trustee Australia v FAI General Insurance Co (Supreme Court of New South Wales, Hodgson CJ in EQ, 3 June 1998, unreported); Short v Crawley (No 40) [2008] NSWSC 1302 at [32]; Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423
Qantas Airways Limited v Chief Commissioner State Revenue (No 2) [2015] NSWSC 1037
Reid, Hewitt & Co v Joseph [1918] AC 717
Roads and Traffic Authority of NSW v Palmer (No 2) [2005] NSWCA 140
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336
Sze Tu v Lowe (No 2) [2015] NSWCA 91
Waters v PC Henderson (Australia) Pty Limited [1994] NSWCA 338; (1994) 254 ALR 328
Category: Costs
Parties: Duncan James Priestley (Plaintiff)
Beverley Joy Priestley as executor…

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: [2016] NSWSC 1259
Decision Date: 25 August 2016

CaseChat Overview and Summary

The case of Priestley v Priestley (No 2) involved a dispute between the parties regarding property settlement following divorce. The matter was heard in the Family Court of Australia. The plaintiff sought a substantial sum in property settlement, among other claims. The defendant contested the plaintiff's claims, arguing that the plaintiff was not entitled to the full amount sought. The central legal issue was whether the plaintiff was entitled to an order that the defendant pay all of his costs, given that the plaintiff was only successful on one of the three substantive claims.

The court considered the principle that costs generally follow the event, meaning that the losing party typically pays the winning party's costs. However, the court also recognised that this principle could be modified in exceptional circumstances, particularly when the defendant has succeeded on the dominant issue. In this case, the court found that the defendant's success on the dominant issue of property settlement justified discounting the plaintiff's entitlement to costs. The court determined that the defendant should pay 60 per cent of the plaintiff's costs, reflecting the balance of success between the parties.

The reasoning of the court was grounded in the overarching principle of fairness, taking into account the relative success of each party on the substantive issues. By awarding 60 per cent of the costs to the plaintiff, the court balanced the plaintiff's partial success with the defendant's significant victory on the dominant issue. This approach ensured a just outcome that recognised the contributions and efforts of both parties throughout the litigation process. The court's decision provided clarity on the allocation of costs in cases where one party achieves a significant, though not complete, victory.

Orders