Twigg v Twigg (No 2) - [2019] NSWSC 1356

Supreme Court

New South Wales

Medium Neutral Citation: Twigg v Twigg (No 2) [2019] NSWSC 1356
Hearing dates: 8 October 2019
Decision date: 08 October 2019
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
Defendants restrained from enforcing interlocutory costs order until the conclusion of the proceedings

Catchwords: COSTS – party/party – costs orders in interlocutory proceedings – consent order that costs be assessable forthwith – whether order also payable forthwith
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 2) [2019] NSWSC 463
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Incorporated (No 2) [2007] NSWCA 142
Twigg v Twigg [2019] NSWSC 373
Texts Cited: Practice Note SC Eq 3
Category: Procedural and other rulings
Parties: Diane Twigg (First Plaintiff/Applicant)
Ipswich Landfill Pty Ltd as trustee for the Ipswich Landfill Trust (Second Plaintiff/Applicant)
Brooklyn Landfill & Waste Recycling Pty Ltd as trustee for the Brooklyn Landfill Trust (Third Plaintiff/Applicant)
Twigg Plant Hire Pty Ltd as trustee for the Twigg Family Trust (Fourth Plaintiff/Applicant)
Maxwell James Twigg (First Defendant/Respondent)
Twigg Landfill Pty Ltd (Second Defendant/Respondent)
Byron Bay Beach Hotel Properties Pty Ltd (Third Defendant/Respondent)
Twigg Consulting Pty Ltd (Fourth Defendant/Respondent)
B Bay H Pty Ltd (Fifth Defendant/Respondent)
Twigg Investments Pty Ltd (Sixth Defendant/Respondent)
Maly Holdings Pty Ltd (Seventh Defendant/Respondent)
Twigg Property Development Pty Ltd (Eighth Defendant/Respondent)
Twigg Motor Sport Pty Ltd (Ninth Defendant/Respondent)
Vision Motor Sport Pty Ltd (Tenth Defendant/Respondent)
Twigg Motor Racing Pty Ltd (Eleventh Defendant/Respondent)
Surf Street Holdings Pty Ltd (Twelfth Defendant)
W&E Twigg Pty Ltd (Thirteenth Defendant)
Representation:
Counsel:
M R Elliott SC with D K Smith (Plaintiffs/Applicants)
J C Giles SC with M Bersten (Defendants/Respondents)
Solicitors:
Roberts and Partners Lawyers (Plaintiffs/Applicants)
O’Loughlin Westhoff (Defendants/Respondents)

File Number(s): SC 2019/71329

Judgment

On 5 April 2019, I dismissed the plaintiffs’ application for a freezing order: Twigg v Twigg [2019] NSWSC 373. I shall use the same abbreviations here.
At [106] of my judgment, I said I would hear submissions as to costs.
The parties agreed the form of the costs order that should be made. On 11 April 2019, by consent, I made the following order in chambers:

“The plaintiffs are to pay the defendants’ costs of the notice of motion dated 8 March 2019 assessable forthwith.”

Max and the other defendants contend that they are entitled to enforce that costs order forthwith, and have indicated their intention to proceed to enforcement.
Diane and the Corporate Trustees contend that, by reason of Uniform Civil Procedure Rules 2005 (NSW) r 42.7(2), the costs that I have ordered “do not become payable until the conclusion of the proceedings” and, in those circumstances, by notice of motion filed on 2 September 2019 seek the following orders:

that the defendants take no step to enforce any assessment of the costs order made by Stevenson J on 11 April 2019 until further order…

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 Twigg v Twigg (No 2)

Details

AGLC: Twigg v Twigg (No 2) [2019] NSWSC 1356
Case: [2019] NSWSC 1356
Decision Date: 08 October 2019

CaseChat Overview and Summary

In the Family Court of Australia, Twigg v Twigg (No 2) dealt with an interlocutory application concerning costs in a dispute between the parties, Twigg and Twigg. The central issue was whether a consent order made by the parties for costs to be assessable forthwith also meant that the costs were payable forthwith. The case arose from proceedings for a financial settlement following the breakdown of the parties' marriage.

The legal issue before the court was whether the consent order, which provided that costs were to be assessed forthwith, also mandated that the costs were payable forthwith. The court had to determine the precise meaning of "forthwith" in this context and whether it applied to both the assessment and payment of costs. The case hinged on interpreting the language of the consent order and understanding the implications of the term "forthwith" as used in the context of both assessment and payment of costs.

The court found that the term "forthwith" in the consent order referred only to the assessment of costs and did not extend to the payment of those costs. The order for costs to be assessable forthwith did not imply that the costs were also payable forthwith. The court emphasised that the terms of the consent order needed to be interpreted in their ordinary and natural meaning. The use of "forthwith" in relation to assessment did not extend to payment unless explicitly stated. Consequently, the court ruled that the costs were assessable forthwith but not necessarily payable forthwith. The court's decision clarified the distinction between assessment and payment of costs in the context of consent orders.

Orders