Shepherd v Shepherd (on Costs)

[2003] NSWCA 201

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Shepherd v Shepherd (on costs) [2003]  NSWCA 201

FILE NUMBER(S):
40175 of 2002

HEARING DATE(S):            02/06/03

JUDGMENT DATE: 24/07/2003

PARTIES:
Helen Doris Shepherd
v
Thomas James Shepherd

JUDGMENT OF:      Meagher JA Sheller JA Beazley JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        DC 757 of 2000, 1338 04 2000

LOWER COURT JUDICIAL OFFICER:     Delaney J

COUNSEL:
A: J E Armfield
R: D Raphael

SOLICITORS:
A: Grech Partners
R: Ian Harper & Co

CATCHWORDS:
Indemnity costs - asset preservation orders.

LEGISLATION CITED:

DECISION:
Orders 1-8 (both inclusive) set out in the appellant's Notice of Motion should be made. In addition, the respondent should pay the appellant's costs of this Notice of Motion and to have a certificate under the Suitors' Fund Act.

JUDGMENT:

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40175 of 2002

MEAGHER JA
SHELLER JA
BEAZLEY JA

Thursday, 24 July 2003

HELEN DORIS SHEPHERD v THOMAS JAMES SHEPHERD

Judgment on Costs

1. MEAGHER JA:  In this action the Court gave judgment on 3 April 2003.  The action concerned, in effect, the specific performance of a contract pursuant to which Mrs Shepherd, the appellant, was to purchase her husband’s one-half share in a property for $65,000.  The Court found in favour of Mrs Shepherd.  The Court asked the parties to bring in Short Minutes of Orders which it would be appropriate for the Court to make.

2. Mrs Shepherd has now filed a Notice of Motion seeking the making of certain orders.  Orders 1-6 in this document are utterly uncontroversial and should be made.  However, the proposed orders 7 and 8 are far from uncontroversial.

3. The order 7 which Mrs Shepherd seeks is an order that her husband (the respondent) pay on an indemnity basis her costs of the application before Judge Delaney in the Court below and of this appeal.  That order should, in my opinion, be made.  The relevant facts are set out in my judgment of 3 April 2003.  It will readily be seen from that judgment that Mr Shepherd at all stages frustrated Mrs Shepherd’s attempts to settle the purchase, as if bent single-mindedly to ensure that he never parted with his one-half interest.  Consistently with this attitude, it now appears that on three occasions (18 July 2002, 1 August 2002 and 18 October 2002) he declined to accept perfectly reasonable Calderbank offers.

4. I shall set out the terms of Order 8 as sought by Mrs Shepherd:

   8.An order that the sum of sixty five thousand dollars ($65,000.00) received by the Registrar of the Court of Appeal in this matter be paid by the Registrar to the respondent’s solicitor and that it be deposited in a controlled monies account on behalf of the respondent pending assessment of the costs and the issue of a Certificate of Taxation.  In the event that the quantum of the costs which the appellant is entitled to after assessment is greater than or equal to the amount held in the controlled monies account, the Respondent shall pay to the appellant the amount held in the controlled monies account on account of those costs.  In the event that the quantum of the assessed costs is less than the amount held in the controlled monies account the respondent shall pay to the appellant the amount assessed and pay the balance to himself.

5. Mrs Shepherd has incurred solicitor/client costs estimated at $75,000.00.  She is a person of modest means.  Mr Shepherd has no assets of any substance other than the $65,000.00 which he is to receive under the settlement.  He has made an offer not to use the $65,000.00 otherwise than to pay debts “in the ordinary course of my personal business affairs”.  Quite obviously costs will have to be assessed, and there will be consequent delays.  In these circumstances it is highly probable that the $65,000.00 will be dissipated, leaving Mrs Shepherd’s costs unpaid.  It is therefore necessary to make the sort of Asset Preservation Order contemplated by Order 8.

6. In my view Orders 1 to 8 (both inclusive) set out in the appellant’s Notice of Motion should be made.  In addition, the respondent should pay the appellant’s costs of this Notice of Motion and to have a certificate under the Suitors’ Fund Act.

*****

LAST UPDATED:            25/07/2003