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Stibbard-Leaver v Leaver

Stibbard-Leaver v Leaver

Case [2021] NSWSC 65 9 February 2021

Costs

Limitation Periods

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Stibbard-Leaver v Leaver [2021] NSWSC 65
Hearing dates: On the papers
Date of orders: 9 February 2021
Decision date: 09 February 2021
Jurisdiction: Equity
Before: Darke J
Decision:
Order that the costs of the proceedings of each party be paid out of the proceeds of sale before the distribution of the balance of the proceeds to the parties.

Catchwords:
COSTS – departure from the general rule – proceedings for appointment of trustees for sale of co-owned property – orders made without a hearing on the merits – whether one party had earlier acted unreasonably in failing to agree to sell property and in failing to accept an offer that would involve a sale of the property – whether unreasonableness is manifest by reference to known circumstances – whether unreasonableness resulted in the incurring of unnecessary costs –– costs of all parties ordered to be paid out of the proceeds of the sale of the property

Legislation Cited:
Conveyancing Act 1919 (NSW), s 66G

Cases Cited:
Chow v Chow (No 2) [2015] NSWSC 1348
Kardos v Sarbutt (No 2) [2006] NSWCA 206
Lewin v Lewin [2019] NSWSC 380
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84

Category: Costs
Parties: Nicole Lisa Stibbard-Leaver (Plaintiff)
Bradley Robert Leaver (First Defendant)
Damien John Leaver (Second Defendant)
Andrew Kelvin Leaver (Third Defendant)
Representation:
Counsel:
Mr A W Smith (Plaintiff)
Mr A Munro (First Defendant)
Solicitors:
Hunts Law (Plaintiff)
Campbell Paton and Taylor (First Defendant)

File Number(s): 2020/305974
Publication restriction: None

Judgment

These proceedings for relief pursuant to s 66G of the Conveyancing Act 1919 (NSW), in respect of a property in Cessnock, were commenced by Summons filed on 26 October 2020. The parties to the proceedings are four siblings who held the relevant property as tenants in common in equal shares. The Summons was returnable on 26 November 2020. On that day, various orders were agreed between the parties, including orders for the appointment of a trustee for sale and orders concerning the manner in which the proceeds of sale were to be dealt with and distributed. The orders were made by the Court on 27 November 2020. Regrettably, there was no agreement as to the costs of the proceedings. The consent orders included directions for the filing of evidence and submissions on that matter, with a view to it being dealt with on the papers.
In accordance with the directions made by the Court, submissions have been filed by the plaintiff and the first defendant. An affidavit of the first defendant sworn on 15 December 2020 has also been filed. The Court has considered that material, together with other evidence that has been filed and referred to in the submissions. I should note that the second and third defendants each instructed the plaintiff’s solicitor to file submitting appearances (save as to costs) on their behalf. These submitting appearances are annexed to an affidavit that has been filed. The appearances themselves…

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.

Continue reading Stibbard-Leaver v Leaver

Details

AGLC: Stibbard-Leaver v Leaver [2021] NSWSC 65
Case: [2021] NSWSC 65
Decision Date: 09 February 2021

CaseChat Overview and Summary

Stibbard-Leaver sought to have trustees appointed to sell the property jointly owned with Leaver. The Supreme Court of Victoria was tasked with resolving the dispute between the parties regarding the costs associated with the proceedings. The primary legal issue before the court was whether the unreasonableness of one party in failing to agree to sell the property or accept an offer involving a sale, in circumstances known to both parties, justified a departure from the general rule on costs. The court also needed to determine if this unreasonableness resulted in unnecessary costs that should be paid out of the proceeds of the sale.

The court considered that the unreasonableness of Stibbard-Leaver in refusing to agree to a sale or accept an offer, which was manifest by reference to the known circumstances, justified a departure from the general rule on costs. The court held that the unreasonableness resulted in unnecessary costs being incurred. Therefore, it was appropriate to order that the costs of all parties be paid out of the proceeds of the sale of the property. This decision reflected the court's discretion to adjust costs where there has been unreasonable behaviour in litigation.

In light of the findings, the court ordered that the costs of all parties be paid out of the proceeds of the sale of the property. This outcome was deemed fair given the circumstances and the unreasonable conduct of one party. The decision underscores the importance of parties acting reasonably in litigation to avoid unnecessary costs being imposed on the other party.

Orders