Thynne v Jevny Pty Limited (No 4) - [2025] NSWSC 1115

Supreme Court

New South Wales

Medium Neutral Citation: Thynne v Jevny Pty Limited (No 4) [2025] NSWSC 1115
Hearing dates: On the papers
Date of orders: 25 September 2025
Decision date: 25 September 2025
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
Order that the plaintiff/cross-defendant pay 75% of the defendants’/cross-claimants’ costs of the proceedings.

Catchwords:
COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Where plaintiff/cross-defendant was partially successful in respect of one issue in substantive proceedings — Whether plaintiff/cross-defendant’s costs in respect of that issue should be paid out of trust funds — Whether each party should pay its own costs in respect of that issue
CIVIL PROCEDURE — Stay of proceedings — Pending appeal — Whether costs order should be stayed until deadline for filing appeal expires or when appeal is determined — Where no such appeal has been filed

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) r 42.1

Cases Cited:
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53; (2015) 90 ALJR 270
Lawrence v Gunner [2015] NSWCA 322
Re Buckton [1907] 2 Ch 406
The Owners Strata Plan Number 57164 v Yau [2017] NSWCA 176
Thynne v Jevny Pty Limited (No 3) [2025] NSWSC 986

Texts Cited:
Nil

Category: Costs
Parties: Harry Bernard Thynne (plaintiff/cross-defendant)
Jevny Pty Limited ACN 001 737 864 (first defendant/first cross-claimant)
Victoria Diane Sheringham (second defendant/second cross-claimant)
Representation:
Counsel:
S V Shepherd/A M Berriman (plaintiff/cross-defendant)
P Knowles SC/C Ernst (defendants/cross-claimants)
Solicitors:
I D Haege (plaintiff/cross-defendant)
O’Neill McDonald Lawyers (defendants/cross-claimants)

File Number(s): 2022/220085
Publication restriction: Nil

JUDGMENT

I delivered judgment in these proceedings on 28 August 2025: Thynne v Jevny Pty Limited (No 3) [2025] NSWSC 986 (principal judgment, or P). These are my reasons in relation to the question of costs. I will adopt the same definitions as used in the principal judgment.
The principal judgment resolved three broad areas of dispute. The first concerned the nature, if any, of Harry’s interest in the Mona Road property (the Mona Road issue). The second concerned some artworks which were bequeathed to Harry but subject to Victoria’s right to retain and use them during her lifetime (the Artworks issue). The third area of dispute involved a number of questions concerning the trust deed and administration of the Trust. The various issues for determination in relation to the Trust were summarised at subparagraphs (3)-(6) of P[72] (the Trust issues).
Harry was altogether unsuccessful in relation to the Mona Road issue and the Artworks issue. In relation to the Trust issues, Harry had some limited success. His main claim on the Trust issues was for the removal of Jevny as trustee, in respect of which he was unsuccessful. Meanwhile, Jevny and Victoria were largely successful in their cross-claim on the Trust…

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 Thynne v Jevny Pty Limited (No 4) 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: [2025] NSWSC 1115
Decision Date: 25 September 2025

CaseChat Overview and Summary

The case of Thynne v Jevny Pty Limited (No 4) involved the plaintiff, Thynne, who sought to recover costs from trust funds held by Jevny Pty Limited. Thynne was partially successful in the substantive proceedings, winning on one issue but losing on others. The court was asked to determine how the costs incurred should be allocated, particularly whether costs associated with the successful issue should be paid from the trust funds or if each party should bear its own costs. The court also needed to decide whether an order for costs should be stayed pending the outcome of any potential appeal.

The court examined the general principle that costs follow the event, and the discretion available in allocating costs between parties. It considered the specific circumstances of Thynne's partial success and the appropriate exercise of discretion in such cases. The court noted that, traditionally, costs follow the event, but it also recognised that in cases of partial success, the court may exercise its discretion to order that costs be borne by each party proportionally. The court further explored the implications of staying the costs order pending an appeal, considering the impact on the parties and the judicial process.

In its decision, the court held that Thynne's costs in respect of the issue on which it was successful should be paid from the trust funds, as this was consistent with the principle that costs follow the event. However, for the issues on which Thynne was unsuccessful, the court ruled that each party should bear its own costs. The court also determined that the costs order should not be stayed pending the outcome of any potential appeal, as no appeal had been filed within the prescribed timeframe. This decision balanced the need for finality in litigation with the discretionary powers of the court in cost allocation.

The court ordered that Thynne's costs in respect of the successful issue should be paid from the trust funds, while each party should bear its own costs for the unsuccessful issues. Additionally, the court ruled that the costs order would not be stayed pending any potential appeal, as no such appeal had been initiated within the stipulated period. This decision provided clarity on cost allocation in cases of partial success and the conditions under which a costs order may be stayed.

Orders