SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 4285 of 2004
| IAN TAYLES | Appellant |
| v | |
| SUSAN DAVIS (NO 2) | Respondent |
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| JUDGES | NEAVE and REDLICH JJA and VICKERY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 5 March 2009 |
| DATE OF JUDGMENT | 7 May 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 107 |
| JUDGMENT APPEALED FROM | Davis v Tayles [2006] VSC 219 (Smith J) |
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COSTS – Appeal – Appellant failed on majority of issues but successfully reduced quantum of property adjustment order by 10 per cent – Considerable amount of time spent on unsuccessful grounds of appeal – Apportionment of costs – Each party to bear own costs of appeal – Trial costs order not disturbed.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr M L Sifris SC with Mr G L Rice | Zindilis Barristers & Solicitors |
| For the Respondent | Ms C E Molyneux QC with Mr D H Colman | Eales & Mackenzie |
NEAVE JA
REDLICH JA
VICKERY AJA:
The appellant, Ian Tayles, seeks an order that the respondent, Susan Davis, his former de facto partner, pay the costs of his appeal on a party/party basis and also pay Mr Tayles’ costs of the trial.
In the proceedings below, Mrs Davis sought an order under s 285 of the Property Law Act 1958. Mrs Davis claimed that the couple had co-habited in a de facto relationship from September 1999 until September 2003 and that it was just and equitable to adjust the parties’ property interests on the basis of the financial and non-financial contributions she had made to their Glen Iris home and to Mr Tayles’ financial resources.
During the trial Mr Tayles’ initial position was that the Court did not have power to adjust the parties’ property interests because they had not lived together for the requisite period of at least two years.[1] His position on that matter later changed. The learned trial judge described the course of the trial as follows:
At the commencement of the hearing, his position was that a relationship commenced when they moved into premises in Glen Iris in January 2001 and terminated in about the middle of 2002. On the fifth sitting day, the period was extended to the end of 2002. On the sixth day of sitting, after a period of cross-examination, Mr Tayles indicated through his counsel that he now conceded that there had been a domestic relationship within the meaning of the Act in the period from January 2000 to June 2002 and a de-facto relationship from January 2001 to June 2002. He also conceded that Part IX of the Property Law Act had application to him and Mrs Davis. He continued, however, to vigorously contest, the issues of the nature of the relationship and its history and the duration of the ‘domestic relationship’. [2]
In final submissions his counsel put forward a number of alternative submissions as to when the relationship ended, with the latest date being June 2003.
[1]Property Law Act 1958, s 281(1). It does not appear…
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- AGLC
- Tayles v Davis (No 2) [2010] VSCA 107
- Case
- [2010] VSCA 107
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the appellant was entitled to any costs from the respondent given that he succeeded only partially in his appeal, and whether the trial costs order should be altered. The court had to consider the substantial time spent on grounds of appeal that were ultimately unsuccessful, and whether this justified any cost recovery from the respondent.
The court found that while the appellant had succeeded in reducing the quantum of the property adjustment order by 10 per cent, the significant amount of time and resources expended on unsuccessful grounds of appeal did not warrant a cost recovery from the respondent. Each party was ordered to bear their own costs of the appeal. The court did not disturb the trial costs order, maintaining that the original allocation of costs at the trial was appropriate. The appeal was thus dismissed with each party bearing their own costs.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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