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Simone Starr-Diamond v Talus Diamond (No 4)

Simone Starr-Diamond v Talus Diamond (No 4)

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Supreme Court

New South Wales

Medium Neutral Citation: Simone Starr-Diamond v Talus Diamond (No. 4) [2013] NSWSC 811
Hearing dates: 5 April 2013
Decision date: 21 June 2013
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Order that the plaintiff pay the defendant a specified gross sum of $294,226.36 instead of assessed costs

Catchwords: COSTS - claim for a specified gross sum instead of assessed costs under Civil Procedure Act 2005 s 98(4)(c) - unsuccessful plaintiff ordered to pay defendant's costs - plaintiff unlikely to be able to pay assessed costs - whether a specified gross sum order under s 98(4)(c) is appropriate.
Legislation Cited: Civil Procedure Act 2005 s 98(4)(c)
Property (Relationships) Act 1984 s 20
Cases Cited: Australasian Performing Rights Assoc Ltd v Marlin [1999] FCA 1006
Beach Petroleum NL v Johnson (1995) 57 FCR 119
Hadid v Lenfest Communications Inc [2000] FCA 628
Harrison v Schipp [2002] NSWCA 213
Simone Starr-Diamond v Talus Diamond (No. 3) [2013] NSWSC 351
Simone Starr-Diamond v Talus Diamond [2012] NSWSC 675
Starr-Diamond v Diamond [2013] NSWCA 7.
Starr-Diamond v Talus Diamond (No 2) [2012] NSWSC 1650
Category: Costs
Parties: Plaintiff:- Simone Starr-Diamond
Defendant:- Talus Diamond
Representation: Counsel:
Defendant:
Solicitors:
Defendant:- S. Hodges

File Number(s): 2008/278342

Judgment

This is my fourth judgment in these proceedings. My principal judgment determined that the plaintiff's claim under Property (Relationships) Act 1984 s 20 failed: Simone Starr-Diamond v Talus Diamond [2012] NSWSC 675. My second judgment dealt with the form of final orders in the proceedings and costs issues: Starr-Diamond v Talus Diamond (No 2) [2012] NSWSC 1650. The third judgment appointed trustees for sale of two properties in Tasmania at Baker's Beach and Ambleside: Simone Starr-Diamond v Talus Diamond (No. 3) [2013] NSWSC 351.

The defendant, Talus Diamond, now seeks the making of a specific gross sum costs order in the proceedings against the plaintiff pursuant to Civil Procedure Act 2005 ("Civil Procedure Act") s 98(4)(c). This fourth judgment deals with that issue. Persons, matters and things are referred to in this judgment in the same way as they are in the other judgments. All the judgments should be read together.

The plaintiff has not appeared to oppose this motion. The plaintiff has been unrepresented throughout these proceedings. She has provided to the defendant and the Court an email address for service, which is not republished in these reasons. I am satisfied that the defendant has given the plaintiff adequate notice of the present motion and the evidence to be read in support of the motion at that email address. The Court notified the plaintiff of its directions that if she wished to contest the defendant's present motion dated 18 April 2013 she should file any evidence in response by Monday 10 June 2013 at 4.00pm. No evidence was filed by that time. The Court indicated that if the matter was to be contested it would be listed for hearing at 9.30am on Thursday, 13 June. The plaintiff gave no…

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.

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Details

Case: [2013] NSWSC 811
Decision Date: 21 June 2013

CaseChat Overview and Summary

The case of Simone Starr-Diamond versus Talus Diamond, No. 4, involved a dispute over costs in the Supreme Court of New South Wales. The plaintiff, Simone Starr-Diamond, had unsuccessfully pursued a claim against the defendant, Talus Diamond, and sought to recover costs under the Civil Procedure Act 2005. The primary issue before the court was whether the plaintiff, who was unlikely to be able to pay the assessed costs, was eligible for a specified gross sum order instead of assessed costs, as provided under section 98(4)(c) of the Act.

The court had to determine if the statutory criteria for a specified gross sum order were met, considering the plaintiff's financial situation and the nature of the litigation. The court examined the plaintiff's ability to pay assessed costs, the complexity and duration of the proceedings, and the reasonableness of the costs claimed. The court weighed the need to provide a fair outcome for both parties, balancing the interests of the plaintiff who could not afford assessed costs against the defendant's right to recover reasonable costs for the defence of the claim.

The Supreme Court held that the statutory criteria for a specified gross sum order were satisfied in this case. The court found that the plaintiff was unlikely to be able to pay the assessed costs and that the costs claimed by the defendant were reasonable. Considering the plaintiff's financial circumstances and the nature of the litigation, the court determined that a specified gross sum order was appropriate. The court fixed the gross sum payable by the plaintiff to the defendant, reflecting the costs reasonably incurred by the defendant in defending the claim.

The final orders of the court included a specified gross sum order for the defendant's costs, reflecting the amount deemed reasonable and recoverable by the plaintiff under the circumstances. The court's decision ensured a fair outcome by recognising the plaintiff's financial constraints while also protecting the defendant's right to recover costs for the successful defence of the claim.

Orders