Simone Starr-Diamond v Talus Diamond (No 2) - [2012] NSWSC 1650

Supreme Court

New South Wales

Medium Neutral Citation: Simone Starr-Diamond v Talus Diamond (No 2) [2012] NSWSC 1650
Hearing dates: 20 July 2012
Decision date: 20 July 2012
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Order the parties do all such things and execute all such documents as are necessary to give effect to the sale of the two Tasmanian properties commonly owned by the parties by the mechanism provided for in these orders.

Catchwords: PROCEDURE - costs - whether costs should follow the event - unsuccessful plaintiff seeks indemnity costs against successful defendant - plaintiff alleges defendant admitted the existence of a de facto relationship only just before trial - whether non admission occasioned increase in plaintiff's legal costs.
HELD: defendant's late admission of de facto relationship did not significantly increase the plaintiff's costs - costs should follow the event - plaintiff ordered to pay the defendant's costs on the ordinary basis
Legislation Cited: Civil Procedure Act 2005; Jurisdiction of Courts (Cross Vesting) Act 1987; Property Relationships Act 1984;
Cases Cited: Simone Starr-Diamond v Talus Diamond [2012] NSWSC 675
Category: Costs
Parties: Plaintiff: Simone Starr-Diamond
Defendant: Talus Diamond
Representation: Counsel:
Defendant: F. Sinclair
Solicitors:
Plaintiff:
Defendant: S. Hodges

File Number(s): 2008/278342

JUDGMENT

This is my second judgment in these proceedings. My principal judgment in the matter was given on 19 June 2012: Simone Starr-Diamond v Talus Diamond [2012] NSWSC 675. This judgment deals with the form of final orders and costs issues. Persons, matters and things are referred to in this judgment in the same way as they are in my principal judgment. The two judgments should be read together.

Civil Procedure Act 2005, s 89

But there is one short preliminary question arising out of my principal judgment. I indicated at [34] that it maybe necessary for formal directions still to be made under Civil Procedure Act 2005, s 89 in respect of these proceedings. I left open the question as to whether such directions might be made with final orders. However, it is clear from [35] in the principal judgment that the only evidence from the previous trial before Smart AJ which was tendered before me was the evidence of Mrs Roberts. This evidence ultimately was read without objection in the way described in [35]. All other material was read afresh in these proceedings. It is therefore not necessary for the Court to make any directions under Civil Procedure Act, s 89(2), allowing all or part of the evidence in the previous trial to be taken as evidence in this trial or allowing further cross-examination. So nothing else now needs to be done in relation to such an order.

I now proceed to the questions of the form of the orders and costs.

The Form of Orders

The form of final orders has been the subject of argument by both sides. Firstly, there is a question of a stay upon the orders. The plaintiff has indicated that she wishes to lodge an appeal against the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Simone Starr-Diamond v Talus Diamond (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWSC 1650
Decision Date: 20 July 2012

CaseChat Overview and Summary

This case involved a dispute between Simone Starr-Diamond and Talus Diamond regarding costs following an unsuccessful claim by the plaintiff. The dispute was heard and determined in the Federal Circuit Court of Australia. The plaintiff alleged that the defendant had only admitted the existence of a de facto relationship just before the trial, which she claimed led to an increase in her legal costs. Consequently, the plaintiff sought indemnity costs against the defendant.

The court was required to decide whether the defendant's late admission of the de facto relationship had a significant impact on the plaintiff's legal costs and whether the plaintiff was entitled to indemnity costs. The court considered the timing of the admission and its potential effect on the plaintiff's costs. The court noted that the plaintiff had not provided sufficient evidence to demonstrate that the defendant's late admission resulted in a substantial increase in costs.

The court found that the defendant's late admission of the de facto relationship did not significantly increase the plaintiff's costs. The court held that the principle of costs following the event applied, meaning that the unsuccessful party should pay the successful party's costs. Therefore, the plaintiff was not entitled to indemnity costs, and the defendant was entitled to their costs on the ordinary basis. The plaintiff was ordered to pay the defendant's costs.

Orders