R v A

[2005] QDC 460

DISTRICT COURT OF QUEENSLAND

CITATION:	R v A [2005] QDC 460
PARTIES:	R (Applicant) V A (Respondent)
FILE NO/S:	BD3479 of 2004
DIVISION:	Civil
PROCEEDING:	Application for final orders and costs
ORIGINATING
COURT:	District Court
DELIVERED ON:	16 December 2005
DELIVERED AT:	Beenleigh (In camera)
HEARING DATE:	18 November 2005
JUDGE:	Tutt DCJ
ORDER:	See orders set out on pages 8, 9 and 10 below.
CATCHWORDS:	De facto relationship – application for de facto property settlement pursuant to Property Law Act 1974 – final orders – question of costs.
Property Law Act 1974 s 341. Uniform Civil Procedure Rules 1999 r 361.
SOLICITORS:	Rhonda Sheehy & Associates for the applicant. John Paul Mould Solicitors for the respondent.

1. Judgment in this matter was delivered on 18 November 2005 at which time further submissions were invited of the parties with respect to final orders and costs. I had prepared “a preliminary draft” of calculations which might reflect the ultimate mathematics of the parties’ respective interests but any final orders would depend on the further submissions to be made, as in matters such as this, final orders may necessarily include formal transfer of property interests of one form or another.

2. On the basis of the figures presented to me at trial my calculations were as follows rounding off the dollar values:

“Gross assets of the parties $289,400.00

Liabilities of the parties: 

Mortgage	$108,200.00
Trendwest	$9,000.00 $117,200.00

$172,200.00

GE Finance debt (this figure excludes	$6,800.00
the $5,000.00 wedding present for son amount for which the respondent has at all times accepted personal responsibility)
CU Credit card debt	$5,000.00 $11,800.00
Net assets: Total	$160,400.00
75% =	$120,300.00
25% =	$40,100.00”

1. It is proposed and agreed that the respondent will accept responsibility for the repayment of the whole GE Finance debt and the CU credit card debt as both of these debts are in the respondent’s name.[1] This being so it is then appropriate that the amount of $5,900.00 (being the applicant’s half of the $11,800.00 debt which the respondent has agreed to pay out) must be added to the respondent’s apportionment so that he receives $46,000.00 and the applicant $114,400.00.

   [1]            Transcript page 125 lines 16-21.

2. On the question of costs I received some oral submissions at the time of judgment delivery at which time two letters were tendered by the respondent’s solicitors which became further exhibits in these proceedings[2] but again I invited any further submissions on this issue which the parties may care to make.

   [2]            Exhibit “8” is the letter dated 25 January 2005 from the respondent’s solicitors to the applicant’s solicitors and Exhibit “9” is a letter dated 12 August 2005 from the respondent’s solicitors to the applicant’s solicitors.

3. I subsequently received the following further material which has also been marked as exhibits:

1.	Letter of 28 November 2005 from the applicant’s solicitors with enclosures viz; a further calculation sheet of the parties’ assets and liabilities with final apportionment to each party and a draft set of final orders to be made (Exhibit “10”);
2.	Letter of 1 December 2005 from the respondent’s solicitors together with a copy of the costs judgment in S v B [2004] QSC 121 (Exhibit “11”); and
3.	Further letter of 16 December from the respondent’s solicitors with copy of their proposed final orders which coincide with the applicant’s draft save for the cash component to be paid to the respondent (Exhibit “12”).

1. The applicant submits that ultimately the cash figure which the respondent is entitled to receive of the assets is $43,222.00 instead of the $46,000.00 I had calculated, on the basis that I had “double-counted” the debt of $5,900.00 being one-half (½) of two liabilities referred to in paragraph [3] hereof. Reference was also made to the mortgage liability of which I was aware at all times, was $108,200.00.

2. The respondent submits that my original mathematics represent an accurate reflection of the parties’ respective interests on the findings made and should therefore stand but sought an order for costs on the basis that the applicant pay the respondent’s costs on a standard basis from the date of a purported offer to settle made on 12 August 2005.

3. On a review of the whole of the evidence I am of the opinion that my original calculations are accurate and that the parties final respective interests of the assets in monetary terms are that the applicant is entitled to $114,400.00 thereof and the respondent the remaining $46,000.00 subject to the respondent accepting responsibility to pay out in full the GE Finance debt and the CU credit card debt as previously calculated.

   Costs

4. The costs regime for proceedings under Part 19 of the Property Law Act 1974 (“the Act”) is governed by s 341 of the Act where the primary position is that each party to a proceeding bears the party’s own costs.[3]

   [3] Section 341(1) of the Act.

5. Section 341(2) provides that:

   “(2) However, if the court is satisfied there are circumstances justifying it making an order, it may make any order for costs or security for costs it considers appropriate.”

   Sub-section (4) then sets out a number of matters which the Court must consider in determining whether there are circumstances justifying an order. One of those circumstances is whether an offer to settle has been made pursuant to the Rules. However that is only one of the matters to which the Court must have regard in considering an application for costs in the context of s 341 of the Act. Other matters to be considered include the conduct of each of the parties in the proceedings; whether a party has been wholly unsuccessful in the proceedings; whether any party made an offer to settle under the Uniform Civil Procedure Rules (“UCPR”) as well as any fact or circumstance the Court considers the justice of the case requires to be taken into account.

6. In this proceeding the respondent made an offer to settle under the UCPR by letter of 25 January 2005 (Exhibit “8”) in which among other things he offered that he would accept the sum of $50,000.00 to settle the proceeding.

7. Obviously the offer to settle was not accepted by the applicant and there is no evidence of any formal counter-offer being made by the applicant.

8. The respondent then made what purports to be a further offer to settle the proceedings by letter of the 12 August 2005 in the same terms as the offer dated 25 January 2005 save that he reduced the cash monetary sum he would accept from the applicant from $50,000.00 to $45,000.00. While this further “offer” may be a “fact or circumstance” which I may take into account pursuant to s 341(4)(g) of the Act it cannot be regarded as a formal offer to settle under r 361 of the UCPR as r 361(4) clearly provides that:

   “(4) If the defendant makes more than 1 offer satisfying subrule (1),
   the first of those offers is taken to be the only offer for this rule.”

9. For completeness it is necessary to refer to the substantive provisions of r 361 which governs the costs principles where a defendant makes an offer to settle. Rule 361 relevantly provides:

“ (1)

This rule applies if—

(a)	the defendant makes an offer to settle that is not accepted by the plaintiff and the plaintiff obtains a judgment that is not more favourable to the plaintiff than the offer to settle; and
(b)	the court is satisfied that the defendant was at all material times willing and able to carry out what was proposed in the offer.

(2)

Unless a party shows another order for costs is appropriate
in the circumstances, the court must—

(a)	order the defendant to pay the plaintiff’s costs, calculated on the standard basis, up to and including the day of service of the offer to settle; and
(b)	order the plaintiff to pay the defendant’s costs, calculated on the standard basis, after the day of service of the offer to settle.”

1. In this matter, the ultimate findings are such that even if a court was bound only by the provisions of the UCPR (which is not the case[4]) the “defendant’s” only valid offer to settle is less favourable to the “plaintiff” than the ultimate finding and consequently he would not be entitled to the benefit of r 361(2)(b).

   [4] Refer to r 689 of the UCPR where costs follow the event.

2. Although the applicant did not make a formal offer to settle under the UCPR, her final submissions at trial were that the respondent’s contribution to the asset pool was of the order of 10% only and that should be reflected in any order made.

3. On the other hand the respondent’s final submissions at trial, were as stated in paragraph [58] of the reasons although his offer to settle was understandably for less than this figure. I should add for the purposes of accuracy that the reference to “applicant” in the final sentence of paragraph [58] of the reasons should read “respondent”.

4. Whilst it could be argued that the respondent’s offer to settle was closer to the ultimate result than any attempt made to settle on behalf of the applicant (of which there is no evidence) the latter did not obtain a judgment “not more favourable” to her than the offer to settle and consequently I do not have to take into account in any event, the effect of r361(1)(a) of the UCPR, which in the consideration of any costs orders under the Act would only be a factor for consideration on the basis of “the justice of the case”, under s341(4)(g) of the Act. In addition as a result of the findings made neither the applicant nor the respondent could be said to have been wholly successful or wholly unsuccessful in the proceeding.

5. In this instance however, while I take into account all of those matters referred to in s 341(4) of the Act I am not persuaded in the exercise of my discretion that there should be any order for costs different from that which is provided in s 341(1) of the Act and that is that each party should bear his or her own costs of the proceedings.

6. My final orders will therefore be as follows:

1. That within thirty (30) days of the date of receipt of these Orders duly sealed from this Honourable Court:-

(a)	The Respondent transfer all his right, title and interest in and to the former family home situated at 30 Lesley Avenue, Caboolture and more particularly described as Lot 6 on Registered Plan 126000 in the Parish of Canning and County of Canning Title Reference 15771014, to the Applicant in consideration for which the Applicant pay to the Respondent the sum of $46,000.00.
(b)	The Respondent refinance the existing joint loan with GE Finance into his sole name OR in the alternative, the Respondent pay out at settlement of the transfer of the former family home all joint indebtedness to GE Finance from the said sum of $46,000.00.
(c)	The Respondent transfer all of his right, title and interest in and to the Trent West Time Share to the Applicant and the Applicant refinance the joint indebtedness thereover into her sole name.

PROVIDED THAT the transfer of the former family home, the refinancing of the existing joint loan with GE Finance or the payment out thereof and the transfer of the Trend West Time Share be effected simultaneously.

2.          That the Applicant retain for her sole use and benefit absolutely the furniture and chattels in her possession and her Superannuation entitlements.

3.          That the Respondent retain for his sole use and benefit absolutely, the furniture and chattels in his possession, the Commodore motor vehicle, the ski boat and the Camira motor vehicle.

4.          That the Respondent be solely responsible for the Credit Union Master Card in his name and indemnifies the Applicant against any liability therefor.

5.          That unless otherwise specified in these Orders, each party be solely entitled to the exclusion of the other, to all other property and resources in the possession of such party, including any liabilities attached thereto, as at the date hereof and indemnifies the other party against any responsibility therefor.

6.          That within ten (10) business days of the settlement of the transfer of the former family home, the Applicant and Respondent attend upon the relevant branch of the Mortgagee thereover, Widebay Capricorn Building Society to sign all necessary documents to release the existing joint Mortgage indebtedness thereover in readiness for settlement.

7.          That for the purposes of effecting these Orders, each party sign as required all necessary documents and, in particular:-

(a)	Release Authority/s to any mortgagee;
(b)	Settlement Authority/s;
(c)	Transfer documents;
(d)	Any other associated document pertaining to the transfer of real property;
(e)	All documents associated to the transfer of the Trend West Time Share.

8.          Each party to the proceeding shall bear that party’s own costs of the proceeding.

9.          Liberty to apply to each party upon 3 days notice to the other to formalise any further orders necessary to give effect to the above.