S v K

[2007] QDC 185

DISTRICT COURT OF QUEENSLAND

CITATION:	S v K [2007] QDC 185
PARTIES:	S
Applicant V
K
Respondent
FILE NO/S:	D104/2005
DIVISION:	Civil
PROCEEDING:	Originating Application
ORIGINATING  COURT:	District Court of Queensland, Toowoomba
DELIVERED ON:	22 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	3, 10 and 16 August 2007
JUDGE:	Alan Wilson SC, DCJ
ORDER:	The order of the court is:

1.    that the property and improvements situated at 18 Stewart Street, Withcott being Lot 9 on Registered Plan 186304 in the Parish of Taylor County of

Churchill be forthwith sold, in the manner set out in the following orders;

2.    that the applicant shall be the agent of the parties for the purposes of such sale;

3.    that the respondent vacate the property not later than 21 September 2007;

4.    that the applicant engage cleaning contractors to effect cleaning of the property (including carpet cleaning, spraying for pests and the like) at a cost

not exceeding $1,500.00 with such work to be undertaken and completed by not later than Friday 5 October 2007 and that the costs of such

cleaning be borne by the parties in equal shares;

5.    that the applicant list the property for sale with Ray White Real Estate, Withcott and Elders Real Estate, Withcott and that the property be advertised in the Toowoomba Realtor magazine and the Toowoomba Chronicle newspaper (Saturday editions) at an initial asking price of $340,000.00 over the period 5 October to 9 November 2007 on condition that the parties shall accept any offer to purchase equal to or in excess of $330,000.00 during that period;

6.    that if the property remains unsold at 9 October 2007 the list price shall be reduced to $330,000.00 over the period 9 November to 7 December 2007 on condition that the parties shall accept any offer to purchase equal to or in excess of $320,000.00 during that period;

7.    that if the property shall remain unsold at 7 December 2007 the list price should be reduced to $320,000.00 on the condition that the parties shall thereafter accept any offer to purchase equal to or in excess of $310,000.00;

8.    that upon the sale of the property the resulting proceeds shall be applied as follows: -

(a)	in payment of real estate commission and associated sale and advertising expenses;
(b)	in discharge of the mortgage debt due to Heritage Building Society;
(c)	in payment of so related expenses including one set of conveyancing fees and outlays (notwithstanding that the parties may be separately represented in respect of the sale);
(d)	in payment to McNamara & Associates (Solicitors for Gatton Shire Council) of the sum of $2,740.75 (or such greater sum as may then be owing) in satisfaction of outstanding unpaid arrears of rates in respect of the property;
(e)	as to the balance monies then remaining, seventy percent to the applicant and thirty percent to the respondent.

9.   that save and except as hereinbefore expressly ordered each party shall retain possession of and take sole exclusive legal title to all such other items of personality, chattels and assets of whatsoever nature as may be in his or her respective current possession or under his or her control free of any claim by the other party including but not limited to bank accounts, insurance policies, superannuation entitlements, cash monies, motor vehicles, house contents, jewellery, plant, machinery, equipment, tools, bikes, trailers, furniture, and such the like;

10. that in the event of default on the part of either party in the execution of any documents necessary for the purpose of effecting these orders the Registrar of the District Court of Qld (Toowoomba Registry) shall be authorised and empowered to execute all relevant deeds and documents in the place and in the stead of the defaulting party and to do all such other acts and things necessary to give validity and operative effect to this order and an Affidavit from the Solicitor for the parties seeking such relief shall be sufficient proof of default;

11. that each party bear its own costs of and incidental to these proceedings; and

12. that each party have liberty to apply in respect of this order.

CATCHWORDS:	COSTS – PROCEEDINGS BETWEEN DE FACTO PARTNERS – OFFER TO SETTLE – offer to settle under UCPR r 353 – meaning and effect of s 341, Property Law Act 1974
Property Law Act 1974, s 341 Uniform Civil Procedure Rules, rr 353, 360
COUNSEL:	G Page SC for Applicant B A Laurie for Respondent
SOLICITORS:	Clewett Corser and Drummond for Applicant Walkers Solicitors for Respondent

1. On 3 August 2007 I delivered Reasons for Judgment in this matter signifying that although the applicant and the respondent had only lived in a defacto relationship for a relatively short time the court should make orders in the nature of a property adjustment under Part 19 of the Property Law Act 1974 (Qld); and, the basis for those orders was, in short, seventy percent of the property which the parties agreed was amenable to an order under Part 19 to the applicant, and thirty percent to the respondent.

2. The parties were invited to agree the terms of orders giving effect to those findings and to make any other necessary submissions. Each has now provided a draft order; and, the applicant has sought costs because, it is said, the final result is better than an offer to settle he made some time before the final hearing.

3. The parties always agreed that the principal piece of property in which they had an interest, a house in a small country town, should be sold. The draft order sought by the applicant requires the respondent to vacate the house promptly so that it can be offered for sale. The respondent would, however, like to bid for the house and to that end in her draft order seeks a period of twenty-eight days to remain there while she attempts to obtain funds to buy out the applicant’s interest, for a sum reflecting an overall value of $330,000.00. The applicant opposes that proposal and notes its inconsistency with the undisputed way the matter was addressed at trial.

4. As the Reasons published on 3 August 2007 show there is no powerful connection between either party and the home, and no good reason why its value should not, for the purposes of the property adjustment which has been ordered, be realised to the fullest extent. As the draft order submitted by Mr Laurie for the respondent tacitly acknowledges, the property may indeed be worth more than the $330,000.00 for which his client wishes to purchase it.

5. The second area of disagreement concerns occupation of the property pending sale. There is no suggestion that the respondent has not cared for the property in the past two years of occupation since her relationship with the applicant broke down, but I accept that there is some tension between her continued occupation and her desire to buy out the applicant’s interest which, for her purposes, is best achieved at the lowest possible price. It is not, in the circumstances, unreasonable to direct that she vacate the premises within a fair interval – say, twenty-eight days.

6. On 21 May 2007 the applicant made an offer to settle on the basis of a sale of the house and division of the proceeds as to sixty percent to him, and forty percent to the respondent. The offer was open until 1 June 2007 and was not, of course, accepted. At trial the applicant did better, by ten percent; the appropriate division was, it was found, seventy /thirty percent.

7. Section 341 of the Property Law Act 1974 (Qld) provides that parties to proceedings of this kind shall bear their own costs unless there are ‘circumstances justifying’ a costs order: ss 341(1),(2). Pursuant to s 341(4) the court, when considering the circumstances, must take into account the income, property and financial resources of the parties; their conduct of the proceedings; degrees of success, or failure; and, whether or not offers to settle were made, and the terms of those offers.

8. The financial circumstances of the parties were discussed in the original Reasons. Neither party is particularly well off and, relevantly, the respondent is not over- burdened with assets and savings. Both conducted themselves appropriately during the proceedings, and at the trial itself. The outcome means that neither was wholly successful, nor unsuccessful. Each contended for a position which was about twenty/twenty-five percent better than that which he/she ultimately achieved at trial. The offer was, it transpires, slightly better than the position the respondent ultimately achieved, but not to a degree which means her failure to accept it could be described as rash, or unreasonable.

9. Section 341 expresses, as a first principle, the notion that in proceedings of this kind each party will bear its own costs. The terms of the following sub-sections indicate that principal will only be departed from in particular, unusual circumstances – e.g. where a party has been “wholly unsuccessful”. That cannot be said of the respondent’s case here. A relatively minor difference between the terms of the formal offer to settle, and the ultimate result, is not a compelling reason for departing from the usual principal. Each party should, in my view, bear its own costs. Otherwise, I have signified the orders which should flow from these, and the previous Reasons.