Proudman v Dickason

[2008] NSWSC 681

CITATION:	Proudman v Dickason [2008] NSWSC 681
HEARING DATE(S):	26/06/08
JUDGMENT DATE :	27 June 2008
JURISDICTION:	Equity
JUDGMENT OF:	White J
EX TEMPORE JUDGMENT DATE:	27 June 2008
DECISION:	Parties to bring in short minutes of order in accordance with reasons.
CATCHWORDS:	FAMILY LAW – de facto relationships – property adjustment – greater financial contribution by man – greater non-financial contribution by woman – relevance of expenditure on gambling and alcohol consumption – relevance of superannuation – superannuation relevant to the subsidiary consideration of parties’ needs and means - FAMILY LAW – de facto relationships – property adjustment – costs – costs follow the event – ‘the event’ may be ascertained in a variety of ways – pleadings and settlement offers will assist in determining ‘the event’ – plaintiff did not achieve the degree of adjustment sought by the pleadings – plaintiff’s settlement offer more reasonable – defendant to pay 50 percent of the plaintiff’s costs
LEGISLATION CITED:	Property (Relationships) Act 1984 (NSW) Civil Procedure Act 2005 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Evans v Marmont (1997) 42 NSWLR 70 Powell v Supresencia [2003] NSWCA 195;(2003) 30 Fam LR 463 Manns v Kennedy [2007] NSWCA 217; (2007) 37 Fam LR 489 Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360; 34 Fam LR 414 Parker v McNair (1990) DFC 76155 Dunstan v Rickwood (No 2) [2007] NSWCA 266; (2007) DFC 95-40 Kardos v Sarbutt (No 2) [2006] NSWCA 206 Baker v Towle [2008] NSWCA 73 Hayes v Marquis [2008] NSWCA 10
PARTIES:	Gail June Proudman v David Roy Dickason
FILE NUMBER(S):	SC 3378/07
COUNSEL:	Plaintiff: D Maddox Defendant: R Johnson
SOLICITORS:	Plaintiff: Parramatta City Legal Defendant: Bateman Battersby

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 27 June 2008

3378/07 Gail June Proudman v David Roy Dickason

JUDGMENT

1 HIS HONOUR: This is an application under s 20(1) of the Property (Relationships) Act 1984 (NSW) for an order adjusting the interests in property of the parties to a de facto relationship. The parties' de facto relationship commenced no later than 1980. When the relationship commenced neither party had property of significant value. The relationship terminated in July 2005. There had been a period of separation of about a year from 1996 to 1997. There are two children of the relationship: a son born in 1980 and a daughter born in 1985.

2 For the greater part of the relationship both parties were in full-time employment: the plaintiff as a process worker, and the defendant as a signals electrician with State Rail or as a union organiser.

3 Except for their joint ownership of the family home, the parties kept their income and assets separate. They did not put their wages into a joint account.

4 The defendant admits that during the relationship the plaintiff was the primary homemaker, but it was not disputed that the defendant also shared in the care of the children and carried out some tasks about the house.

5 The parties jointly own a house in Woodgate Crescent, Cranebrook (the “Woodgate Crescent property”) and agree that its value is $280,000. The plaintiff owns a motor vehicle valued at $3,000 and has savings accounts of less than $600. Her share of the contents of the house is agreed to be worth $5,000. As at 1 July 2005, her superannuation benefits were valued at $118,571.66.

6 The parties owe the St George Bank approximately $34,000. That debt is secured over the Woodgate Crescent property. The plaintiff acknowledges that, as between her and the defendant, she alone is responsible for the debt.

7 The defendant recently purchased a property in Farm View Drive, Cranebrook (the “Farm View Drive property”) for $290,000, but the purchase was virtually, if not wholly, funded by debt. He borrowed $275,000 from the St George Bank and $20,000 from friends. The defendant owns a motor vehicle with an agreed value of $4,000, shares worth $5,328, a trailer worth $200 and a fibreglass boat which he has been unable to sell. I conclude that it has no significant value. His share of the household contents is agreed to be worth $5,000. As at December 2007, he had cash at bank of $19,537, excluding the $20,000 borrowed from friends which has been applied in the purchase of the Farm View Drive property.

8 As of 1 July 2005, his superannuation benefits were valued at $357,527.94. There are no updated figures as to the value of each party's superannuation benefits.

9 Section 20(1) of the Property (Relationships) Act provides:

“ 20 Application for adjustment

(1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to:
(a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and
(b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely:
(i) a child of the parties,
(ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties.”

10 The principal issues are: first, the assessment of the contributions made by both parties within s 20(1)(a) and (b); secondly, the significance of the plaintiff's gambling and the defendant's expenditure on alcohol; thirdly, the significance of the disparity between the parties' superannuation entitlements; and fourthly, if the plaintiff's contributions under s 20(1)(a) and (b) outweigh those of the defendant, such that some adjustive order should be made, whether that order should be by way of a lump sum payment, and if so, whether it should be calculated as a percentage of some or all of the parties’ assets.

Parties’ Claims

11 In final submissions, counsel for the plaintiff contended that the assets of both parties at the time of separation were worth $370,034 excluding superannuation, and that there were liabilities (these being the plaintiff's liabilities), of $39,800 leaving net assets of $330,234.00.

12 Counsel for the plaintiff submitted that the plaintiff should receive assets to the value of 70 percent of $330,234 being $231,164. Counsel submitted that to give effect to such an entitlement, the defendant ought to be ordered to transfer his interest in the Woodgate Crescent property to the plaintiff and that she should pay the defendant $24,237, discharge the mortgage over the house and thereby discharge the defendant's liability to St George for the loan for which she accepts responsibility. The parties would keep the other assets in their respective possession or control.

13 If the defendant's interest in the Woodgate Crescent property is worth $140,000, being half the agreed value of $280,000, then the effect of that submission would be to transfer to the plaintiff property of the defendant to the value of about $115,000.

14 By his cross-claim, the defendant seeks an order that the plaintiff acquire his interest in the Woodgate Crescent property for $150,000 and discharge the mortgage or procure his release from the mortgage to St George which is secured over the property. Alternatively, he seeks an order that the property be sold, the mortgage discharged and the remaining proceeds divided giving 60 percent to the defendant and 40 percent to the plaintiff.

15 If the defendant's interest in the property is worth $140,000, the effect of the defendant's contention is in substance that an adjustive order should be made which would transfer $10,000 to him in addition to his receiving full value for his interest in the property.

Further Background

16 The Woodgate Crescent property was purchased as vacant land in 1981 or 1982 for $15,300. The defendant paid $5,861. The balance of the purchase price was borrowed on mortgage security from St George. In about April 1982, the parties entered into a contract to construct a house on the property. The price of construction was approximately $38,000. This was paid by refinancing the mortgage which was increased to about $45,000.

17 There is no evidence as to what contributions the parties made to the mortgage repayments between 1982 and 1985. After the birth of their son, the plaintiff returned to full-time employment in 1982. In about December 1984, she took maternity leave. Their daughter was born on 26 January 1985. The plaintiff returned to work on a full-time basis in about August 1985. At about this time the parties agreed that the defendant would pay for the mortgage and also make repayments for a new car the defendant needed to replace his existing car.

18 It was agreed that the plaintiff would pay for outgoings such as groceries. Thereafter, the defendant paid for the mortgage and paid rates and utility expenses, such as water, electricity and telephone expenses. He also paid for insurance. The normal arrangement was that the plaintiff bought groceries, other household items, and clothing for the children. The plaintiff also paid other expenses for the children and contributed to other costs such as entertainment, holidays and gifts.

19 The loan secured by the mortgage was repaid by about April 1996. So far as the evidence reveals, the plaintiff continued to be responsible for the purchase of groceries and other household items as well as children's clothes, and the defendant continued to pay other household expenses such as rates, utilities and insurance.

20 From at least the mid 1990s, if not earlier, the plaintiff spent money she had left over after paying for the, "groceries and what I had to pay out to the kids and all that" by playing poker machines at one of the nearby clubs. From time to time she would borrow money from the defendant at the club in amounts of about $50 which she would repay the following week. She denied that she used her credit cards to buy food and groceries.

21 There is no question that she ran up substantial debts on her credit cards which were consolidated and refinanced in 2003. This was the source of the debt incurred in 2003 to the St George bank which the plaintiff has been repaying and from which she accepts responsibility.

22 The plaintiff said that on average she would go to the club about once a week from about 1996 or 1997. She said that she would spend about $50 or $100, or perhaps $200, but the last not very often. The main club in question appears to be the Panthers Club at Penrith.

23 No records of her expenditure on gambling are available, or at least none were tendered, for periods before April 2005. The plaintiff said that her attendance at the Panthers Club in the last three years, that is, from 2005, was about the same as it had been in earlier years. She denied spending anything near $350 per week. That is, she denied losing anything like $350 a week on gambling. However, the records produced by Penrith Rugby League Club Limited on subpoena record that during the period from 19 April 2005 to 13 April 2008, the plaintiff lost $54,906.23 on the poker machines. The plaintiff's counsel says that this overstates the true position for two reasons. First, the plaintiff was a member of a program called "Rewards Plus". As a reward for putting money through the poker machines she was given points which she could use to buy food and drink at the club and was entitled to use the special lounge area.

24 Secondly, the records produced by the club did not include any "link jackpot" amount the plaintiff may have won that may have been transferred to her machine via "CCCE transfer".

25 These considerations do not substantially affect the conclusion that the plaintiff was losing substantial amounts by gambling in the order of $300 to $350 per week. She gave no evidence of any substantial "link jackpot" wins, and savings on expenditure for food and drink through the Rewards Plus scheme must have been minimal compared to the amount gambled. I infer also that the plaintiff was making similarly substantial losses for at least the nine years preceding 2005.

26 Up to about 2005, the defendant spent a substantial amount on alcohol for his own consumption. He estimated that, at that time, his expenditure on alcohol was about $150 per week.

27 The defendant had been employed with the State Rail Authority from at least the 1970s, including before he met the plaintiff. He was employed by State Rail until 1994. Between 1994 and 1999, he was employed as a union organiser with the Electrical Trades Union. He returned to employment with State Rail in 1999 and remained there until 2001 when he took redundancy. He received a $50,000 redundancy payout and about $40,000 as a long-service leave payout. The plaintiff deposed that the defendant stopped work for two years after he took redundancy and thereafter, until their separation, he worked in casual jobs. She acknowledged that he continued to pay "many family bills". A substantial part of the moneys received by the defendant in 2001 was applied to the family household needs. These included a holiday for the parties in Queensland, and other trips, restoration of the roof, conversion of the garage into another room, paving of the backyard, and the purchase of motor vehicles for the parties’ children. Some money was spent on the defendant himself, including a holiday to Perth and for the purchase of a motor boat. This last item cost $20,000. The boat was sold in July 2006 by the defendant to his brother-in-law for $3,500. I accept his denial that the sale had anything to do with these proceedings.

28 The defendant admits that the plaintiff was the primary homemaker, but asserts that he also played a significant role in caring for the children and, to a certain extent, in doing work about the house. Because both parties were working, and for some time the defendant was doing shift work, there were times when they were able to split the times one of them would be home in the mornings or afternoons to care for the children. They also had assistance from others, including their respective mothers and neighbours, in looking after the children.

29 The defendant started shift work in 1986 when the parties' son was five and their daughter was one. Until late that year, he worked either morning, afternoon or night shifts. Morning shifts were from 7am to 3pm, afternoon shifts were from 3pm to 11pm, and night shifts were from 11pm to 7am. During this period when the plaintiff was at home, and if the defendant was also at home, he cared for the children. However, it appears these arrangements only lasted for about a year and from late 1986 the defendant worked from 7.30am to 4pm from Monday to Friday. The plaintiff deposed that she worked a lot of overtime and at nights and on Saturdays to earn extra money.

30 Evidently, the time either party had to spend with their children was limited. The plaintiff did the majority of the household cooking, although the defendant cooked on average two, or sometimes three, evenings per week. The plaintiff did the cleaning, the washing and the ironing for the family. The defendant did the majority of work to be done outside the house but the plaintiff also contributed in that regard.

31 In 2003, the parties borrowed $50,000 from the St George Bank. These moneys were received by the plaintiff. She applied $40,000 to discharge earlier debts, including a debt on her motorcar; but at least $25,000 was applied to discharge prior credit card debts. It is not very clear how she spent the balance of the loan, except that about $6,000 was spent on household furnishings and repairs.

Assessment of Parties’ Contributions

32 It is not possible, on the evidence, to reach any definite conclusion as to the extent of the parties' respective financial contributions to the acquisition, conservation or improvement of property or as to their financial contribution to the welfare of the family. No relevant records were tendered. The plaintiff says that she threw out records of her income and expenditure including bank statements. There was not even an attempt to estimate how much the defendant paid to discharge the initial mortgage taken over the property, or how much he paid towards rates, utilities and insurance. Nor was there an attempt to estimate how much the plaintiff paid towards things such as groceries and other household items, or for expenses for the children.

33 As I have said, both parties were in employment and kept their money separate. Uncertain though the evidence is, it appears to me on balance the defendant’s financial contributions to the acquisition and improvement of the Woodgate Crescent property and his financial contributions to the family's welfare exceed those of the plaintiff. But I am unable to say by how much. It is also not possible to say what proportion of his or her income was spent by each party on the welfare of the family, or on the acquisition, conservation or improvement of the family home. Not only were there no records of expenditure, but there were no records of income, although there were some statements as to the level of income earned by the parties at different times.

34 Although the defendant was in skilled or semi-skilled employment and the plaintiff is a process worker, it does not appear that the defendant earned significantly more than did the plaintiff. I do not conclude that the defendant's financial contributions bore less heavily on him than did the plaintiff's on her because the defendant earned more. Nor do I conclude the reverse.

35 It is admitted that the plaintiff made greater non-financial contributions in the role of homemaker than did the defendant. Again, it is difficult to assess the disparity of their contributions in that respect. Nonetheless, her acknowledged role in doing the washing, the ironing and the cleaning and the majority of the cooking, and her role as primary caregiver to the children is to be given substantial weight. These contributions continued for over two decades.

36 In my view, the disparity in the plaintiff's favour between the parties’ non-financial contributions in their capacities as homemakers and parents under s 20(1)(b) is not matched by the disparity in the defendant's favour of contributions made under s 20(1)(a) to the acquisition, conservation and improvement of the property or the financial contributions under s 20(1)(b) to the welfare of the family.

37 The question then is how that conclusion should be reflected in an adjustive order under s 20. The parties’ personal expenditure from gambling and alcohol and their disparate superannuation entitlements are relevant to that question.

Expenditure on Gambling and Alcohol

38 I do not consider that the money lost by the plaintiff through gambling affects the assessment of the worth of the contributions she did make, which are to be taken into account under s 20(1)(a) and (b). The effect of her gambling was that she spent her own money so that it was not available to be applied to the family's needs. But that does not detract from the value of such contributions as she did make. The same is true of the defendant's expenditure on alcohol. As Gleeson CJ and McLelland CJ in Eq said in Evans v Marmont (1997) 42 NSWLR 70 (at 79):

" Considerations of fault are not mentioned, even obliquely, anywhere in the Act. This is hardly surprising. Against the background of a no-fault system of dissolution of marriage, it is hardly likely that a parliament in Australia in 1984 would have intended questions of fault to govern property issues arising between de facto partners. "

39 However, the parties' personal expenditure on gambling and alcohol is relevant to whether an adjustive order should be made by giving the plaintiff a percentage of a divisible pool of assets. Although it is impossible to quantity the plaintiff's losses from the mid 1990s to 2005, I have no doubt that they were substantial. Likewise, but for her gambling, from 2005 there would be about an extra $50,000 which would form part of such a divisible pool. The same is true but to a lesser extent in relation to the defendant's expenditure on alcohol up to 2005.

40 These consideration point to the making of a lump sum adjustment having primary regard to the contributions described above without calculating such a sum as a proportion of assets.

Just and Equitable Adjustment

41 Means and needs of the parties are relevant as subsidiary factors to which regard should be had in deciding what is just and equitable having regard to the contributions falling under s 20(1)(a) and (b) and the nature and incidents of the parties’ relationship as a whole (Evans v Marmont at 75 and 79-80; Powell v Supresencia [2003] NSWCA 195; (2003) 30 Fam LR 463 at 472 [27]; Manns v Kennedy [2007] NSWCA 217; (2007) 37 Fam LR 489 at 511 [123]-[124]).

42 So far as the needs of the parties are concerned, there is little to go on. The plaintiff is in employment and I was told that the defendant is now in full-time employment. The plaintiff has 26 years of accumulated long-service leave. The parties' children are now adults. The son presently resides with the defendant in the house the defendant has recently purchased, and the daughter resides with the plaintiff.

43 The parties' superannuation benefits are relevant as they are part of their means. The plaintiff's counsel initially submitted that the superannuation benefits were not property which could be the subject of an order under s 20(1) but were a financial resource to which regard should be had under s 20(1)(a). I do not agree with this reasoning but I accept that regard should be had to the parties’ superannuation position.

44 In Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360; 34 Fam LR 414, the Court of Appeal held that superannuation entitlements are both a financial resource within the meaning of s 3 and "property" which can be the subject of an order under s 20 (at 366 [21]-[23], 383 [90] and 390 [120]). Neither party sought an adjustive order which would operate directly on the opposite party's superannuation entitlement.

45 In Chanter v Catts, Hodgson JA and Hunt AJA also held that it was wrong to say that a party's superannuation entitlements could be taken into account in determining what order is appropriate only if and to the extent that the other party had contributed to that entitlement (at 366 [21] and 390 [120]). I do not understand their Honours to be saying that superannuation entitlements can be treated as primary matters to which regard should be had in determining what adjustive orders are just and equitable even if a party has not made any contribution, either direct or indirect, to those entitlements. That would be contrary to the general principles articulated by Gleeson CJ and McLelland CJ in Eq in Evans v Marmont at 75 and 79-80, which has been endorsed in subsequent decisions of the Court of Appeal. Section 20(1)(a) refers to contributions a party makes, directly or indirectly, to the acquisition, conservation or improvement of the property or financial resources of the parties or either of them, not to such property or financial resource simpliciter.

46 Counsel for the plaintiff submitted that the plaintiff had made an indirect contribution, or more accurately counsel said, “thousands” of contributions, to the defendant's earning his superannuation entitlement. She did so, so it was submitted, by her work as a homemaker which assisted the defendant in being able to go to work. I doubt that that is so. But it does not matter whether it is so or not. The plaintiff's contribution as a homemaker is to be valued for what it is, and it is to be given the same weight whether it qualifies as a contribution under s 20(1)(b) only, or also as an indirect contribution to the defendant's acquisition of superannuation entitlements.

47 Nonetheless, for the reasons I have given, the parties’ disparate superannuation entitlements are relevant matters which form part of the context against which an assessment of what order is just and equitable is to be made, albeit that the orders must be made having primary regard to the parties’ contributions falling under s 20(1).

48 In considering their superannuation entitlements as part of that context, I take into account that it is uncertain what moneys the parties might ultimately receive and when they will receive such moneys. However, it seems reasonably clear that when the defendant retires after turning 55 he will have more superannuation than the plaintiff, unless she works for considerably longer. That is not to say there is any evidence to suggest that either party will be retiring in the near future. There is no evidence as to when they are likely to retire. The defendant is presently 53 and the plaintiff is 56.

Conclusion

49 In cases such as the present, under this Act it is at this crucial point of decision-making that the attempt to provide reasons for a conclusion breaks down. This is inevitable because a decision has to be made on uncertain data, by applying uncertain and indeterminate criteria, and by weighing factors which are incommensurable.

50 As Bryson JA said in Chanter v Catts (at 385 [94]):

" ... The Master left the basis of the assessment of $95,000 unexplained; I am at a loss to see any other or better process for reaching a conclusion on that matter, and an attempt to reduce to arithmetic the assessment of the contribution made by the appellant staying at home and contributing to the family welfare to the respondent’s superannuation resources by some detailed process or calculation could not improve on the simple one-step process of evaluation which the Master used. There are many stages in the course of disposing of civil proceedings where resort to judicial wisdom and experience for evaluating in money terms something which has no essential relation with money and commercial dealings is the only means available; such assessments must often be required in coming to decision under s 20. "

51 I am unable to give any further explanation as to why the figure which I consider ought to be paid as a lump sum payment to reflect the plaintiff's greater contribution under s 20 should be preferred to some other figure. In my view, the appropriate adjustive order under s 20 is that the defendant pay to the plaintiff the sum of $80,000. That is on the basis that the plaintiff will continue to be solely responsible as between the parties for the debts secured over the property arising from the 2003 loan.

52 The defendant's only resource from which that sum can be paid appears to be his interest in the Woodgate Crescent property. Pursuant to s 19, an order should be made which will finally terminate the parties’ financial relationship. Both parties contemplated that the plaintiff might acquire the defendant's interest at a price which would reflect the value of the property and any adjustive order which might be made in favour of either party.

53 I will stand the proceedings over so that the parties can see whether they are able to agree on a price at which the plaintiff will acquire the defendant's interest, and from which the sum of $80,000 will either be paid or be taken into account, and also for the parties to see if the plaintiff can raise the finance to purchase the defendant's interest and discharge him from liability to St George in respect of the 2003 loan.

54 If that cannot be done, then the property will need to be sold and the proceeds applied by being notionally divided equally, but with $80,000 to be paid by the defendant to the plaintiff. The moneys needed to discharge the debt to St George will be deducted from what would otherwise be the plaintiff's share of the proceeds. If the property is to be sold and the parties cannot agree on the mechanics for engaging agents and solicitors for settling a reserve and for marketing the property, then the defendant should make an application for the appointment of trustees for sale. I will therefore adjourn the proceedings to a date convenient to counsel about four to six weeks hence and direct the parties then to bring in short minutes of order in accordance with these reasons.

[Counsel addressed on costs.]

55 The plaintiff submits that she has succeeded in her application, albeit that she has not been totally successful. Counsel for the plaintiff submits that in those circumstances the appropriate order as to costs is that the plaintiff should receive a proportion of her costs. The defendant submits that there should be no order as to costs. Section 98 of the Civil Procedure Act 2005 (NSW) provides that, subject to the rules of court and to that Act or any other Act, costs are in the discretion of the Court and the Court has full powers to determine by whom, to whom and to what extent costs are to be paid.

56 Rule 42.1 of the Uniform Civil Procedure Rules provides that subject to that part, if the Court makes any order as to costs, the Court is to order that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs.

57 The difficulty in cases such as the present is in identifying the event from which a presumption arises that a successful party is to obtain his or her costs.

58 Rule 42.30 deals with costs in proceedings under the Property (Relationships) Act where the Court declares a right or adjusts an interest and the value or amount does not exceed the jurisdictional limit of the Local Court sitting in its general division. However it is common ground that the orders I have indicated I will make would not be within the jurisdictional limit of the Local Court. That rule does not affect the operation of rule 42.1 in the circumstances of the present case.

59 In Parker v McNair (1990) DFC 76155 at 76160, McLelland J said:

" In this kind of case where the discretionary powers of the Court are invoked it is important on the question of costs, in my view, to see how reasonable or otherwise the parties have been in limiting issues for litigation and in making offers of settlement, and this is the kind of case in which parties would be wise, if they wished to make an offer of settlement, to adopt the Calderbank form of letter, that is to make the offer without prejudice except on the question of costs (see (1976) Fam. L.R. 93), or to make an open offer, because it is only in the light of that sort of information that the Court can really be properly placed to consider whether the litigation was necessary. "

60 In Dunstan v Rickwood (No 2) [2007] NSWCA 266; (2007) DFC 95-40, McColl JA, with whom Beazley and Ipp JJA agreed, did not accept all of what was said in Kardos v Sarbutt (No 2) [2006] NSWCA 206 as to the approach to costs orders in cases under the Property (Relationships) Act. The Court said that r 42.1 applied so the prima facie costs should follow the event. As I understand her Honour's reasoning, her Honour was of the view that the obtaining of an adjustive order under s 20 was the event for the purpose of r 42.1. However, in Baker v Towle [2008] NSWCA 73, Beazley JA, who was also a party to the decision in Dunstan v Rickwood (No 2), said that neither Dunstan v Rickwood (No 2), nor Hayes v Marquis [2008] NSWCA 10 dealt with the question of what was the event for the purpose of that rule. Her Honour said that, "the event" may be the defined or identified in a variety of different ways (at [20]).

61 The pleadings will also define the scope of the dispute, and the identification of the issues. The parties’ success or failure thereon is part of the relevant matters to be taken into account in exercising the discretion as to costs.

62 The plaintiff claimed in her statement of claim filed on 28 June 2007 and in her amended statement of claim filed on 6 September 2007, orders that the defendant transfer his interest in the Woodgate Crescent property to her and that he also pay her the sum of $60,000. That claim was not pressed at the final hearing. But there is nothing to indicate that the plaintiff had modified that claim on an open basis prior to the commencement of the hearing.

63 Settlement offers were exchanged in September 2007. They were exchanged against the background of the parties in their pleadings, having attributed a value to the Woodgate Crescent property at the end of cohabitation in the sum of $285,000. The offers were made without prejudice, save as to costs.

64 It was common to all of the offers that the plaintiff would have responsibility for the discharge of the mortgage to the St George Bank. On 10 September 2007, the plaintiff proposed that the defendant transfer his interest in the property to her in return for her doing all acts necessary to discharge the mortgage and to pay the defendant the sum of $55,000. That offer was not far short of the relief the plaintiff has obtained.

65 The defendant proposed that in return for the transfer of his interest in the property, he receive $110,000. There were some other terms of the offer which may have affected the plaintiff's consideration of it, but this appears to have been the substantial matter which separated the parties.

66 The defendant made a further offer earlier this week but his position appears to have hardened as the proposal then made was that the property be sold, the plaintiff be responsible for discharging the mortgage, and the net proceeds of sale be distributed equally.

67 In my view, the plaintiff's offer of 10 September 2007 was more reasonable than the defendant's response. In my view, the plaintiff was acting reasonably in instituting the litigation, albeit that I see no basis for it to have been commenced in this Court rather than the District Court. However, it was not submitted that the costs of the parties were in any way increased by reason of proceedings being in this Court rather than in the District Court.

68 The plaintiff has had a substantial measure of success. The plaintiff's counsel accepted that as she was not totally successful, a proportion of her costs should be paid. Having regard in particular to the ambit of her claim as made in her pleadings, I think that position is realistic.

69 For these reasons, I order that the defendant pay 50 percent of the plaintiff's costs of the proceedings.

70 I stand over the proceedings to 9.30am on 5 August 2008, unless the matter is relisted earlier at an earlier convenient date at the request of counsel, or unless counsel forward agreed short minutes of order giving effect to these reasons to my associate, in which case I will make those orders in chambers.

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