RD v DB (No. 2)

[2011] QSC 124

SUPREME COURT OF QUEENSLAND

CITATION:

RD v DB (No. 2) [2011] QSC 124

PARTIES:

RD
(plaintiff)
v
DB
(defendant)

FILE NO:

7984 of 2008

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

20 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Applegarth J

ORDER:

No order as to costs.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – DEMAND, OFFER AND CONSENT – where property adjustment order made under Part 19 of the Property Law Act 1974 – where defendant made formal offer to settle under Uniform Civil Procedure Rules 1999 – where substantial costs incurred between date of offer and eventual trial – where judgment after trial was in substance similar to the defendant’s earlier offer to settle – whether judgment was “not more favourable” than the defendant’s offer to settle – whether Court should depart from the general rule in the Property Law Act s 341 that parties bear their own costs

LEGISLATION:

Property Law Act 1974, s 341

Uniform Civil Procedure Rules 1999, r 361

CASES:

Grace v Jeneka [2002] QCA 335 cited

Robinson v Higginbotham (1991) 14 Fam LR 559; [1991] FamCA 4 cited

COUNSEL:

N B McGregor for the plaintiff
A P J Collins for the defendant

SOLICITORS:

Denise Maxwell Solicitor for the plaintiff
Harrington Family Lawyers for the defendant

1. On 15 April 2011 I published my reasons and directed the parties to submit minutes of orders.[1]  The parties reached agreement on the terms of orders that gave effect to the property adjustment order that I pronounced.  The parties have also made written submissions in relation to costs.  The defendant seeks an order for costs against the plaintiff.  She relies upon a formal offer to settle that was made on

   
   

   17 December 2008 and the substantial costs that have been incurred by her since then.  She seeks costs from the date of the offer or some other order that will award her a significant proportion of the costs that she has incurred since December 2008. 

   [1]RD v DB [2011] QSC 83.

Relevant provisions and principles

1. Section 341(1) of the Property Law Act 1974 (“the Act”) provides that each party to proceedings under Part 19 bears the party’s own costs.

1. The Court may make an order that a party pay costs if it is satisfied that there are circumstances justifying it making an order.  In that case the Court can make such order as it thinks appropriate. In considering whether there are circumstances justifying the making of an order for costs the Court must consider the following matters:

(a)     the income, property and financial resources of each of the parties;

(b)     whether any party has legal aid and the terms of the legal aid;

(c)the conduct of each of the parties in relation to the proceeding, including, for example, conduct about pleadings, particulars, disclosure, inspection, interrogatories, admissions of facts and production of documents;

(d)whether the proceeding results from a party’s failure…