Turner v O'Bryan-Turner (No 2) - [2019] NSWSC 1774

Supreme Court

New South Wales

Medium Neutral Citation: Turner v O’Bryan-Turner (No 2) [2019] NSWSC 1774
Hearing dates: On the papers
Date of orders: 13 December 2019
Decision date: 13 December 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. The defendants (the applicants on the motion) pay the costs thrown away by the successive iterations of the notice of motion ultimately heard on 21 June 2019.
2. Otherwise, costs of the notice of motion heard on 21 June 2019 be costs in the cause.

Catchwords: COSTS — Party/Party — Costs orders in interlocutory proceedings — Costs in the cause – where the applicants were successful however no costs order should be made in light of the conduct of the proceedings to date and the fact that there had been numerous iterations of the notice of motion – where the conduct of the respondents has also been unsatisfactory – held that the appropriate course is to order that costs of the motion be costs in the cause other than the costs thrown away by the successive iterations of the notice of motion by the applicants.
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 98, 99
Supreme Court Act 1970 (NSW), s 198M
Uniform Civil Procedure Rules 2005 (NSW), rr 7.10, 42.1, 42.7
Cases Cited: Fountainhead Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd [1988] FCA 202; (1988) 81 ALR 397
Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300; [2005] NSWCA 153
Myers v Elman [1940] AC 282
Owen John Turner by his Tutor Nicholas John Turner v Wendy Joan O’Bryan Turner [2018] NSWSC 1140
Roache v News Groups Ltd [1998] E.M.L.R 161
Turner v O’Bryan-Turner [2019] NSWSC 1340
Turner v O’Bryan-Turner [2019] NSWSC 258
Whyte v Brosch (1998) 45 NSWLR
Texts Cited: G E Dal Pont, Law of Costs (4th ed, 2018, LexisNexis Butterworths Australia)
Practice Note SC Gen 5
Category: Costs
Parties: Owen John Turner bht Nicholas John Turner (First Plaintiff)
Allawah Pastoral Pty Ltd (Second Plaintiff/Second Cross-Defendant)
Nicholas John Turner (Third Plaintiff/First Cross-Defendant)
Wendy Joan O’Bryan-Turner (First Defendant/First Cross-Claimant)
David John Turner (Second Defendant)
Karl John Turner (Third Defendant)
Registrar-General, Land & Property Information (Fourth Defendant)
Representation:
Counsel:
J Svehla and D Paratore (Plaintiffs/Respondents on the Motion)
G Curtin SC with MM Pringle (First to Third Defendants/First Cross-Claimant/ Applicants on the Motion)
Solicitors:
Cleary Hoare Solicitors (Plaintiffs/ Respondents on the Motion)
Palmers Solicitors (First to Third Defendants/First Cross-Claimant/ Applicants on the Motion)

File Number(s): 2017/00080121
Publication restriction: Nil

Judgment

HER HONOUR: This application relates to the costs of an interlocutory application heard by me on 21 June 2019 in a dispute between various members of the Turner family. The relief sought in that amended notice of motion (the Amended Motion) (and the issues raised on that application) went to the constitution of the proceedings and raised not uncomplicated issues as to the appointment of a tutor to represent a person lacking legal capacity in circumstances where there are claims…

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: [2019] NSWSC 1774
Decision Date: 13 December 2019

CaseChat Overview and Summary

The matter of Turner v O'Bryan-Turner (No 2) involved proceedings in the Family Court of Australia where the applicants, Turner, sought various reliefs against the respondents, O'Bryan-Turner. The nature of the dispute centred around family law matters, specifically concerning the applicants' attempts to secure financial and parenting arrangements. The Family Court was tasked with resolving these complex family law issues amidst the applicants' numerous iterations of the notice of motion and the unsatisfactory conduct of the respondents.

The legal issues before the court included whether the applicants, despite being successful in their applications, were entitled to costs and, if so, what form those costs should take. The court also needed to consider the conduct of both parties in the proceedings to date, as well as the multiple iterations of the notice of motion by the applicants, to determine an appropriate costs order. Given the circumstances, the court had to balance the applicants' success against their conduct and the respondents' unsatisfactory behaviour.

In delivering the judgment, the court observed that while the applicants were successful, their conduct during the proceedings was less than ideal. The applicants had issued multiple iterations of the notice of motion, which had resulted in costs being thrown away. The respondents' conduct was also deemed unsatisfactory. The court concluded that while the applicants were entitled to costs in the cause, the costs associated with the successive iterations of the notice of motion should not be recoverable. Thus, the court ordered that the costs of the motion be costs in the cause, except for those costs that were rendered futile by the applicants' successive iterations of the notice of motion. The court's decision aimed to provide a fair resolution while discouraging such conduct in future proceedings.

Orders