Separovich v Ferrao (No 2)

Case [2011] NSWCA 346

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Separovich v Ferrao (No 2) [2011] NSWCA 346
Hearing dates:On the papers
Decision date: 14 November 2011
Before: Beazley JA at 1;
McColl JA at 33;
Macfarlan JA at 34
Decision:

1. The appellant's appeal against the costs order made by McLaughlin AsJ be dismissed;

2. Order that the appellant pay the respondent's costs of the appeal, those costs to be paid on the ordinary basis up to and including 11 October 2010 and thereafter on an indemnity basis.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

COSTS - Property (Relationships) Act 1984 - costs order made on delivery of judgment - no submission made prior to delivery of judgment - whether party denied procedural fairness - processes, including application under UCPR 36.16 to make submissions not availed of - no denial of procedural fairness

COSTS - Property (Relationships) Act 1984 - UCPR 42.1 - starting point for costs is that costs follow the event - no error in exercise of discretion

COSTS - Property (Relationships) Act 1984 - offer of compromise -offer of compromise made at first instance - trial judge not advised of offer of compromise - no basis to give effect to offer of compromise for proceedings at first instance when offer raised for first time on the appeal

COSTS - Property (Relationships) Act 1984 - offer of compromise made in respect of appeal proceedings - result of appeal more favourable to offeror than offer - order for indemnity costs made in accordance with UCPR 42.14
Legislation Cited: Civil Procedure Act 2005
Property (Relationships) Act 1984
Uniform Civil Procedure Rules 2005
Cases Cited: Aktas v Westpac Banking Corp Ltd [2010] HCA 47
Apostolidis & Ors v Kalenik & Ors (No 2) [2011] VSCA 329
Baker v Towle [2008] NSWCA 73
Bellchambers v Jackson [2009] TASSC 113
Dunstan v Rickwood (No 2) [2007] NSWCA 266; 38 Fam LR 491
Esma Fay Towle v John Graham Baker [2007] NSWSC 357
Hayes v Marquis [2008] NSWCA 10
Hillier v Sheather (1995) 36 NSWLR 414
House v R [1936] HCA 40; 55 CLR 499
Hutchinson v Ellis [2010] SASCFC 71
Jensen v Ray [2011] NSWCA 247
Kardos v Sarbutt (No 2) [2006] NSWCA 206
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
Paino v Paino [2006] NSWSC 886
Vollmer v Hauber Davidson (No 2) (Supreme Court of New South Wales, Macready M, 24 August 2004, unreported)
Vollmer v Hauber Davidson [2006] NSWCA 79; (2007) DFC 95-400
Category:Costs
Parties: Steven Michael Separovich (Appellant)
Paula Cristina Ferrao (Respondent)
Representation: A Givney (Appellant)

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AGLC
Separovich v Ferrao (No 2) [2011] NSWCA 346
Case
[2011] NSWCA 346
Decision Date

CaseChat Overview and Summary

In *Separovich v Ferrao (No 2)*, the New South Wales Court of Appeal considered an appeal concerning costs orders made in proceedings under the *Property (Relationships) Act 1984*. The appellant sought to challenge a costs order made by McLaughlin AsJ, which had been delivered without prior submissions from the parties on the issue of costs.

The primary legal issues before the Court of Appeal were whether the trial judge had erred in making a costs order without allowing the parties an opportunity to make submissions, and whether the trial judge had correctly exercised their discretion regarding costs, particularly in light of an offer of compromise. The Court also had to determine the appropriate costs order for the appeal itself, considering a further offer of compromise made in relation to those proceedings.

The Court of Appeal held that the appellant had not been denied procedural fairness. It noted that the Uniform Civil Procedure Rules 2005 provided mechanisms, such as an application under UCPR 36.16, for parties to seek to make submissions after judgment. The Court found no error in the trial judge's exercise of discretion, affirming the starting point that costs follow the event under UCPR 42.1. The offer of compromise made at first instance was not considered as it had not been brought to the trial judge's attention. However, an offer of compromise made in respect of the appeal proceedings was relevant, as the outcome of the appeal was more favourable to the offeror.

Consequently, the Court of Appeal dismissed the appellant's appeal against the costs order made at first instance. The Court ordered that the appellant pay the respondent's costs of the appeal, with those costs to be assessed on the ordinary basis up to and including 11 October 2010, and thereafter on an indemnity basis, reflecting the successful offer of compromise made in relation to the appeal.

Orders

Orders of the court

1. The appellant's appeal against the costs order made by McLaughlin AsJ be dismissed;

2. Order that the appellant pay the respondent's costs of the appeal, those costs to be paid on the ordinary basis up to and including 11 October 2010 and thereafter on an indemnity basis.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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