S v B

[2004] QSC 121

SUPREME COURT OF QUEENSLAND

CITATION:

S v B [2004] QSC 121

PARTIES:

S
(plaintiff)
v
B
(defendant)

FILE NO/S:

SC 6082 of 2000

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING
 COURT:

Supreme Court, Brisbane

DELIVERED ON:

6 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

11-15 August 2003

JUDGE:

Philippides J

ORDER:

1.  The defendant  pay to the plaintiff the amount of $255,431.
2.  Within 14 days of the date of this Order, the plaintiff shall do all acts and execute all documents as are reasonably necessary to:
(a)  cause the plaintiff to resign as a director of E;
(b)  cause the shareholding held by the plaintiff in E to be transferred to the defendant.
3.  The defendant pay one third of the plaintiff’s costs on a standard basis.

CATCHWORDS:

DE FACTO RELATIONSHIPS – costs – whether circumstances justifying an order as to costs

Property Law Act 1974, s 341

COUNSEL:

C Forrest for the plaintiff
A Collins for the defendant

SOLICITORS:

Attwood Marshall for the plaintiff
Gall Standfield & Smith for the defendant

PHILIPPIDES J: 

1. Judgment in this matter was delivered on 8 March 2004, it being determined that the parties had been in a de facto relationship within the meaning of the Property Law Act 1974 and that it was appropriate to make a property adjustment order apportioning 15% of the total property pool of $1,702,872, resulting in the payment of $255,431 to the plaintiff. That determination is made on the basis that the plaintiff’s shareholding in E be transferred to the defendant. The following formal orders are made to give effect to the judgment:

1.          The defendant  pay to the plaintiff the amount of $255,431.

2.          Within 14 days of the date of this Order, the plaintiff shall do all acts and execute all documents as are reasonably necessary to:

(a)        cause the plaintiff to resign as a director of E;

(b)        cause the shareholding held by the plaintiff in E to be transferred to the defendant.

1. As to the question of costs, s 341(1) of the Act states that a party to a proceeding under Part 19 of the Act bears the party’s own costs. However, provision is made in s 341(2) of the Act for a court to make any order as to costs it considers appropriate, if satisfied that there are circumstances justifying it making such order.

1. On behalf of the plaintiff, it is contended that the instant case is one where there are circumstances which justify the making of an order that the defendant pay the plaintiff’s costs.  In this regard, particular reliance is placed on the defendant’s failure to make proper timely disclosure, the substantial financial disparity between the parties, the fact that the plaintiff was said to have been put to proof to an undue extent, and the quantum of the plaintiff’s costs.  In support of the submissions reference is made to Penfold v Penfold (1980) FLC 90-800 and Wright v Barry (1992) FLC 92-323. The plaintiff also points to what is said to be the defendant’s failure to make any realistic offer, although as to this matter, the approach of both parties indicated an unrealistic approach to quantum. The defendant disputes that any order as to costs is justified.

1. Whilst the submissions made on behalf of the plaintiff in support of the contention that the circumstances justify an order that the defendant pay the plaintiff’s costs overstate the case, there is some merit in the emphasis placed on the matters concerning the defendant’s disclosure, the substantial financial disparity between the parties and certain aspects of the case in respect of which undue proof was required and late admissions were made. Whilst each of those matters alone may have been insufficient to amount to justifying circumstances, their combination provides circumstances which I consider justify an order that the defendant pay one third of the plaintiff’s costs on a standard basis and I so order.