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Tayles v Davis (No 2)

Tayles v Davis (No 2)

Case [2010] VSCA 107 7 May 2010

Appeal

Costs

Apportionment of Costs

Civil Litigation & Procedure

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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…

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 Tayles v Davis (No 2)

Details

AGLC: Tayles v Davis (No 2) [2010] VSCA 107
Case: [2010] VSCA 107
Decision Date: 7 May 2010

CaseChat Overview and Summary

The appellant, Tayles, appealed against a decision made in the Family Court regarding property adjustment orders following the breakdown of his marriage with the respondent, Davis. The appeal was heard by the Full Court of the Family Court of Australia. The primary concern of the appeal was the apportionment of costs related to the lengthy and complex litigation process, despite the appellant's failure on the majority of the issues presented.

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