Tyms v Williamson

[2010] NSWCA 138

New South Wales

Court of Appeal

CITATION:	Tyms v Williamson [2010] NSWCA 138 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	10 June 2010
JUDGMENT DATE:	9 July 2010
JUDGMENT OF:	Beazley JA at 1; Handley AJA at 2; Davies J at 3
DECISION:	(1) The appeal is allowed. (2) Judgment for the Plaintiff for $110,000 on 4 August 2009 set aside. (3) In lieu thereof, substitute, judgment for the Plaintiff for $91,000 with effect from 4 August 2009. (4) No order as to the costs in this Court. (5) Any variation of the cost orders below to be sought by Notice of Motion filed within 14 days of the publication of these reasons.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - de facto relations - adjustment of property interests - evaluation of contributions - balancing of financial and non-financial contributions by the parties - treatment of superannuation by the Trial Judge - sufficiency of reasons.
LEGISLATION CITED:	Property (Relationships) Act 1984
CASES CITED:	Baker v Towle [2008] NSWCA 73 Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360 Howlett v Neilson [2005] NSWCA 149 Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 Fam LR 550 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Trosse v Howard [2009] NSWCA 346 Williamson v Tyms [2009] NSWDC 348
PARTIES:	Steffan Adrian Tyms (Appellant) Aina Signe Maria Williamson (Respondent)
FILE NUMBER(S):	CA 2009/298488
COUNSEL:	Ms S Christie (Appellant) G M Gould (Respondent)
SOLICITORS:	O’Hearn & Bilinsky Lawyers (Appellant) Cunningham & Adam Solicitors (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	24/2008
LOWER COURT JUDICIAL OFFICER:	Sidis DCJ
LOWER COURT DATE OF DECISION:	4 August 2009

CA 2009/298488

BEAZLEY JA
HANDLEY AJA
DAVIES J

FRIDAY, 9 JULY 2010
TYMS V WILLIAMSON

Judgment

1 BEAZLEY JA: I agree with Davies J.

2 HANDLEY AJA: I agree with Davies J.

3 DAVIES J: The Appellant and the Respondent met in about 1997 and commenced a de-facto relationship in June/July 1999 when the Respondent and her young son Dylan moved into the Appellant’s house at 56 Florida Avenue, New Lambton.

4 The de-facto relationship came to an end in February 2006 when the Respondent and her son moved out of the property.

5 The Respondent commenced proceedings under the Property (Relationships) Act 1984 claiming the sum of $145,000 from the Appellant. The proceedings were heard by her Honour Judge Sidis in the District Court, and her Honour gave judgment on 4 August 2009. She entered a verdict and judgment for the Plaintiff in the sum of $110,000 and made costs orders against the Defendant which required the payment of indemnity costs for a portion of the proceedings: Williamson v Tyms [2009] NSWDC 348.

6 The Appellant appeals to this Court asking that the appeal be allowed and the claim by the Respondent be dismissed. Alternatively, the Appellant asks that the proceedings be remitted for hearing in accordance with the law.

Contributions

(a) At the beginning of the relationship

7 At the commencement of the relationship the Appellant was employed on a fulltime basis as a bus driver for the State Transit Authority. He was earning a gross income of a little under $48,000 per year. His assets were as follows:

(a) Property at 56 Florida Avenue, New Lambton (unencumbered) - $160,000;

(b) Savings (Newcastle Bus Credit Union) - $28,948;

(c) Superannuation $135,191;

(d) 1991 Nissan Pulsar SSS motor vehicle;

(e) 1997 Harley Davidson Motorcycle;

(f) Furniture and personal effects.

8 His superannuation consisted of 2 policies. The first was with First State Super that had a balance of a little under $20,000 that included accrued employment leave entitlement.

9 The balance of his superannuation was in an account with AMP. It had been accrued by him over a 21 year period from 6 April 1978.

10 The Appellant had no liabilities.

11 The Appellant and Respondent first met in about mid 1998. At that time she was living in rented premises in Raymond Terrace with her son Dylan born 3 November 1994. At the commencement of the relationship the Respondent had only items of personal property of minimal value and she was free of debts.

12 At that time the Appellant lived with his father who by that stage had some form of dementia. After the Appellant and Respondent met, but before the Respondent moved in with the Appellant, the Respondent travelled to the Appellant’s house in New Lambton about 4 days per week to look after the Appellant’s father. In early 1999 the Appellant’s father moved into a nursing house.

(b) During the relationship

13 During the course of the relationship the Appellant continued to work for State Transit but the Respondent did not work. There was an issue about whether that was because the Appellant did not want the Respondent to work. The Respondent asserted that the Appellant was of a controlling nature and refused to allow her to work outside the home. The evidence in relation to this was somewhat sparse. There were 2 occasions referred to when the Respondent thought of working as a ballet teacher and on another occasion at a café but neither eventuated, it appears, because there were costs associated with child care and also the wage that was being offered for the café job.

14 From the somewhat brief reasons of the Trial Judge it appears that she accepted the evidence of the Respondent that she did not work because the Appellant did not want her to do so.

15 The Respondent’s evidence was that she did all of the housework, some of the gardening and work assisting the Appellant to improve the house and garden, and she cared for their pets - a dog and a large number of birds. There was a dispute as to the extent of the work performed by the Respondent, with the Appellant claiming he shared responsibility for the cooking and caring for the pets, and that he did most of the gardening and improvements to the house. He also claimed that his daughter Rochelle, who lived in the house for 2 years from 2000 to 2001, also undertook housework in lieu of paying board. That was disputed by the Respondent.

16 It appears that the Trial Judge accepted, or largely accepted, the Respondent’s evidence about the extent of the work in the house and garden that she carried out, and that the Appellant’s daughter performed minimal housework.

17 The Respondent received money during the relationship from child support from the father of Dylan and from Family Allowance, all of which totalled in the vicinity of $58,500 over the period of the relationship. Nevertheless, the Respondent accepted that most bills and household expenses were paid for by the Appellant both from his wages and from savings.

18 In addition, the Respondent conceded that the Appellant paid at least some of Dylan’s school fees at the local Catholic school, and paid other amounts for expenses associated with him.

19 During the course of the relationship the Appellant cashed in an insurance policy he had with AMP amounting to $15,593.76. That money was paid into his credit union account and was used to pay household and other expenses arising from the relationship with the Respondent.

20 The Appellant was promoted in his job during the course of the relationship. He worked shift work and his annual income varied from $45,399 in 2000 to $64,949 in 2006 (when the relationship came to an end) and subsequently $68,893 the following year.

21 The payments made by the Appellant during the relationship are said to have included the purchase of a Holden Commodore motor vehicle for $4,800. This car was purchased at least partly to enable the Respondent to have a motor vehicle to drive. In addition, the Appellant paid for the Respondent’s driving lessons.

22 The Appellant paid private health insurance for himself, the Respondent and Dylan until March 2004. He claims also to have paid for dental work that the Respondent needed to have done. He claims he gave to the Respondent $120 per fortnight that increased to $200 per fortnight for personal use although these figures were disputed. The Respondent acknowledged that the Appellant gave her $120 per fortnight increasing to $150 per fortnight during the last 18 months of the relationship. This was money for her personal use as opposed to money for household expenses. She conceded in any event that the Appellant paid for household goods.

23 By the time the relationship came to an end the New Lambton property had increased in value to $400,000. The Appellant’s superannuation had increased to $174,212.45 although at about the time of the hearing it was worth $165,195.54. The evidence did not identify what contributions to the superannuation had been made by the Appellant. The Appellant then had no savings and had a credit card debt of approximately $21,800. That resulted in him subsequently borrowing money on security of the New Lambton property to pay the credit card debt.

The judgment of the Trial Judge

24 The Trial Judge commenced by noting the 3 stage process that must be conducted in relation to applications of this sort: Baker v Towle [2008] NSWCA 73 at [42]-[43].

25 Her Honour noted the assets of the parties at the commencement of the relationship and then at the time of hearing. At the time of hearing she noted the house was worth $400,000, and the motor vehicle, the motorcycle, furniture and personal effects were worth about $8000 and superannuation was worth about $165,000. Liabilities were said to be $22,200 so that her Honour assessed the value of his assets at the hearing at about $550,000.

26 Her Honour noted the acknowledgement of the Respondent of the superior contribution of the Appellant financially throughout the relationship but made mention also of amounts the Respondent had received through Social Services and child support. In this regard, her Honour noted the Respondent’s acknowledgment that it was the Appellant who provided the majority of income to support the 3 persons although there was irregular child support from Dylan’s father. Her Honour noted that the Appellant’s adult daughter lived with the parties for 2 years without providing any direct financial contribution.

27 Her Honour then went on to deal with the non-financial contributions from both parties. She said that she preferred the evidence of the Respondent on those aspects which were disputed for 3 reasons which she set out.

28 Her Honour then, in a passage that was discussed at length at the hearing of the appeal, said this:

[16] In ordinary circumstances where the parties agree that one will provide income and the other will attend to the household, consideration of an adjustment would commence at the point of an equal distribution . In this case it was conceded by the plaintiff that, because of the defendant’s superior direct financial contribution, an equal division of property would be inappropriate and it was suggested an adjustment should be made in her favour of 30 to 35 per cent of the asset pool. The defendant argued that no adjustment should be made because of the deterioration in his financial position resulting from the period of cohabitation. (italics added)

There was some discussion at the hearing of the appeal about whether “distribution” was intended to be “contribution”. The matter was unresolved but the sense of the passage is clear whichever word is used.

29 The judgment then went on to say this:

[17] I regarded both of these positions as inappropriate. The authorities make it clear that deterioration in the financial position of the parties will not justify refusal to adjust interests. In this case the parties agreed that the plaintiff would be the party responsible for the household but she did this for a relatively short period of something over six years.
[18] Taking into account the imbalance in favour of the defendant in the financial contribution by way of assets, I decided that the appropriate adjustment of the property interests of the parties was 80 per cent to the defendant and 20 per cent to the plaintiff. The result is that there will (sic) verdict and judgment for the plaintiff in the sum of $110,000.

30 As can be seen, the award of $110,000, on the basis that the adjustment ought to be 80:20, was derived from her Honour’s assessment of the value of the Appellant’s assets at the hearing of $550,000.

The appeal

31 The Appellant complained of 2 errors of law. First, it was said that her Honour started from the wrong assumption, that is, an assumption of equal contribution. Secondly, the Appellant said that her Honour failed to give adequate reasons for making the orders that she made.

32 There were then a number of grounds concerning what were said to be errors of fact that embraced her Honour’s treatment of (a) the non-financial contributions of the Appellant, (b) the treatment of superannuation, (c) the financial support provided by the Appellant to the Respondent’s child, (d) the deterioration of the financial position of the Appellant over the relationship, (e) the specific contributions made by each party to the relationship and (f) the final financial position of both parties as a consequence of the orders. Finally, there were said to be 2 errors of discretion; first, the identification of the 3 matters which caused her Honour to prefer the Respondent’s evidence on disputed matters and, secondly, a complaint that the overall result was outside the reasonable exercise of discretion.

Ground 5 – Preferring the Respondent’s evidence

33 It is necessary to deal with this ground first because the acceptance of the Respondent’s evidence on certain disputed matters by the Trial Judge seemingly forms the basis for some or all of the conclusions to which she came in dividing the property in the manner she did.

34 The ground asserts that her Honour erred because the 3 matters she identified were irrelevant, particularly to the orders that her Honour made. This seems to me to misunderstand what her Honour was doing. She had identified claims and counter-claims in relation to non-financial contributions, particularly of the Respondent. It was necessary to determine whose evidence was to be accepted so that the non-financial contributions could be dealt with appropriately.

35 Her Honour identified 3 matters which she said provided the reasons for her acceptance of the Respondent. They were, in the first instance, matters which assisted her Honour in determining credibility issues, although the first and third of them also touched on the substantive issues, namely, who it was that actually did the bulk of the work around the house. In that sense, those 2 matters were not at all irrelevant to the orders made. But because they helped her Honour come to a view that the Respondent’s evidence was to be preferred, they were all ultimately relevant.

36 The Appellant also said, in relation to this ground, that the error was that the Trial Judge failed from those credit findings “to bring in for consideration the work carried out by the Appellant” within the house. That seems to be a separate ground of appeal and not any manifestation of error in the credit findings made by the Trial Judge in reliance upon those particular matters. Nothing has been identified to show that the Trial Judge’s judgment miscarried in making the credit findings that she did.

Ground 1 – Commencement point

37 The Appellant pointed to what her Honour said in the first sentence of that portion of her judgment set out above in para [28] (that the commencement point is an equal distribution where the parties agree that one will provide income and the other will attend to the household) and submits that there is no such principle of law. The Appellant directed attention to what was said in Howlett v Neilson [2005] NSWCA 149 at [29] that there is no presumption of law that the starting point is one of an equal distribution.

38 This seems to me to be a misunderstanding of both what is said in Howlett v Neilson and what the Trial Judge said. What was said in Howlett v Neilson was this:

[29] … In many cases, it may be appropriate simply to treat the contributions of the parties during the relationship as equal, even though the nature of the contributions are different, although of course there is no presumption of law to that effect, and this assessment depends on a judgment being made that the quality of the contribution of each, in his or her own sphere, deserves to be considered as equal: Mallett v. Mallett (1984) 156 CLR 605. However, that judgment is one that often may be readily reached: Marriage of Ferraro (1992) 16 FamLR 1, Marriage of Clauson (1995) 18 FamLR 693, Jones v. Grech .

39 It does not seem to me that her Honour was working from any presumption of equality but only saying that that was an appropriate starting point in the circumstances she set out. That seems to me to be entirely consistent with what was said in Howlett v Neilson.

Ground 4 - Lack of reasons

40 The Appellant makes a general complaint about the lack of adequate reasons by the Trial Judge. The lack of reasons is said to involve a number of the grounds of appeal where error of fact is alleged. It will be necessary in considering what are said to be those factual errors to have regard to the extent and adequacy of her Honour’s reasoning.

41 In Trosse v Howard [2009] NSWCA 346 Hodgson JA (with whom Macfarlan JA agreed) said at [22] and [23]:

[22] What s 20 requires is that the Court reach a view as to what, if any, order, adjusting the interests of the parties in their property, is just and equitable having regard to their contributions to the acquisition, conservation or improvement of their property, or to their financial resources, or to their welfare (there being no children in this case); and in my opinion this requires some articulation of how it is that the contributions make the adjustment just and equitable, at least unless this is reasonably obvious.

[23] This is not to say that there needs to be some clear and precise link shown between the contributions and the justice and equity of the adjustment made: by reason of the nature of the test, in many cases the link will be vague, loose and indefinite. But in my opinion, there does need to be some articulation of a link.

42 What is complained about in the present case is that her Honour does not articulate how it is that the contributions to which she refers make the adjustment that she made by dividing the assets on an 80:20 basis, just and equitable. The full extent of her Honour’s reasons for dividing the property in the way she did are set out in paras [28]-[29] above. Further, it can be inferred, as I have noted, that the figure of $110,000 is derived from her Honour’s assessment of the Appellant’s assets at the time of the hearing of $550,000.

43 The Respondent, whilst conceding that her Honour’s reasons were brief and at times did not deal with particular matters, submitted that there was no exercise of mathematical precision required, as the cases make clear, and that it was apparent how her Honour reached the position she did from the various matters mentioned in the judgment when it was read as a whole.

44 Whilst making every allowance for the pressures that the Trial Judge was no doubt working under in a busy list and the need for a quick judgment in the matter, it seems to me that her Honour’s reasons are inadequate in law for disclosing the means by which she reached the result she did. This is the more so when the judgment was reserved.

45 Quite apart from what was said by this Court in Trosse v Howard at [22]- [23], it is only necessary to recall what was said in the more extensive judgments in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 especially at 270-271, 272-273, 280-281, and the cases which have followed it, to see that her Honour’s reasons are inadequate to understand why she came to the conclusions she did. Particular problems with the reasons can now be dealt with in relation to specific grounds of appeal.

Ground 7 – Appellant’s support of the child

46 Her Honour refers only to the child Dylan in 2 circumstances. First, she notes the acknowledgment of the Respondent that the Appellant provided the majority of the income to support the parties and Dylan, and in that regard her Honour noted the child support that was paid by Dylan’s father. Secondly, her Honour made reference to the Appellant’s claim that he inter-related with Dylan by babysitting when the Respondent was not at home and by taking him to sporting activities. Because, the Appellant claimed, Dylan had behavioural problems it was he (the Appellant) who was required to manage them because the Respondent was unable to do so.

47 In relation to the behavioural problems her Honour preferred the evidence of the Respondent that Dylan did not have behavioural problems and that the relationship between the Appellant and Dylan was simply a poor one.

48 Her Honour makes no other reference to Dylan in terms of contributions, financial or non-financial, that the Appellant made for his benefit. The net result is that her Honour has not provided any reasons for the conclusion that she reached on a division of the property arising out of support, financial or non-financial, for Dylan independently of the fact that the Appellant provided the majority of the income for the family.

49 Her Honour does not refer to the payment by the Appellant of school fees for Dylan, the payment of other expenses for him (all of which were conceded by the Respondent) nor does she give any credit to the Appellant for non-financial contributions in respect of Dylan that the Respondent conceded he made such as making Dylan’s breakfast, packing his lunchbox and getting him ready for school. These were matters that s 20(1)(b)(ii) specifically required the Judge to consider. Her Honour’s failure to refer to them in her reasons was an error because it leaves undetermined whether or not her Honour had regard to them when making the division of property that she did.

Ground 8 - Superannuation

50 It is clear from s 20 and the definitions of both financial resources and property in s 3(1) that superannuation is to be taken into account when making an order under s 20 and see Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360 at [23]. However, her Honour does not appear to have had any regard to what was said by Bryson JA in Chanter at [97] and, particularly, what Hodgson JA said at [24]. Hodgson JA drew a distinction between types of superannuation entitlements and contrasted a fund made up of compulsory employer deductions on the one hand and, on the other “a self-employed person who has considerable control over what amounts are invested and perhaps over the fund itself, as well as over what may be withdrawn, at least after passing the age of 55”. Hodgson JA said that in such a case the superannuation entitlements may not be very different from other investments.

51 At the time of the hearing the Appellant was aged 51. He had no present entitlement to the superannuation and would not have had any entitlement for some years to come.

52 Notwithstanding, her Honour has simply included the amounts standing to his credit in his superannuation accounts as if they were assets under his control and available to him. In not making any reference to that matter or to what was said in Chanter v Catts her Honour’s reasons were inadequate and lead to the inference that her Honour failed to have regard to the special position of the appellant’s superannuation when she reached her determination on the division of the property.

Ground 10 – Non-financial contributions of the Appellant

53 Her Honour noted the dispute between the parties as to the extent of their work around the house including the garden. Her Honour said that she preferred the Respondent’s evidence “on these disputed parts of the evidence” which appear to include the issue of housework and gardening. Her Honour then seems to reach the conclusion that the Appellant did not contribute non-financially because of what she says in the first sentence of the passage set out in para [28] above.

54 If that is her Honour’s conclusion it appears to be an error at the very least because of various concessions the Respondent made about the non-financial contribution of the Appellant to the relationship. Mention has already been made of things that he did for the child. Further, the Respondent conceded that the Appellant assisted her in recovering child support from Dylan’s father, and that he performed other tasks on the improvement of the house such as removing wallpaper, painting, cleaning, sanding, and the considerable work that he carried out in the garden of the property. The work in respect of the house might be thought to be significant because there was undisputed evidence that the value of the property increased over the period of the relationship.

55 Her Honour’s failure to make any mention of the Appellant’s non-financial contribution to the relationship leads strongly to the inference that her Honour had no regard to it at all when she came to make the division of property between the parties.

Ground 12 – Global approach

56 The Appellant asserts that whilst her Honour was entitled to adopt the global approach that she did rather than an asset by asset approach, she was in error in failing to give reasons for that approach. The Appellant submits that she was required to do so by reason of what was said in Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 Fam LR 550 at [52]-[55].

57 What is said in Kardos in those paragraphs suggests, prima facie, that in circumstances such as obtained in the present relationship a global approach was the appropriate one because, otherwise, there would be a risk of undervaluing the non-financial contribution of one party – Kardos at [54].

58 In the circumstances, I see no basis for complaint that her Honour did not explain why, in the circumstances, she preferred the global approach, particularly as the Appellant does not dispute that such an approach was an appropriate one.

Conclusion – Lack of reasons

59 Her Honour’s failure to provide any or any adequate reasons in relation to Grounds 7, 8 and 10 was an error of law, the result of which is that her Honour’s discretion miscarried. Although it was faintly suggested by the Appellant that the matter should be remitted to the District Court for further hearing it does not seem to me that the cost to the parties would justify such a result. It is open to this Court to re-exercise the discretion on the basis of the facts found by her Honour and inferences that can be drawn from undisputed evidence in the matter.

60 In the light of this determination it is not necessary to say anything further in relation to Ground 11 which asserts that the result was outside the reasonable exercise of discretion on her Honour’s part.

61 The Appellant identified other areas where it was asserted her Honour failed properly to take matters into account, being the deterioration of the financial position of the Appellant over the course of the relationship (Ground 2), the failure to identify the financial position of both the parties that would emerge as a consequence of the orders (Ground 3), and the failure to identify the specific contributions made by each party that her Honour took into account (Ground 6). In the light of the determination that her Honour’s discretion miscarried, these are matters which need simply to be taken into account on the re-exercise of discretion by this Court.

Re-consideration

62 In considering Ground 2, it should be noted that, whilst it is true that her Honour does not refer especially to the “deterioration” of the Appellant’s financial position, she noted that his savings had gone, that he had cashed in an insurance policy and expended it in support of the parties, including the child, and that he had a credit card debt of $22,200.

63 It does not seem to me to be an accurate description to speak of the deterioration of the financial position of the Appellant over the course of the relationship. Although he had spent money from savings and cashed in a policy, the value of his house and superannuation had increased quite considerably. He had received the benefits of the Respondent’s contributions to the relationship. It would be more accurate to refer to a change in his financial position.

64 In relation to Ground 3, the submission of the Appellant appears to be that an order which leaves the Appellant in a position where he has no savings, he is in debt before the order is made and thereafter obliged to pay a sum of money to the Respondent is not just and equitable. Such a submission appears to be question-begging because it assumes that leaving the Appellant in that position could not be just and equitable. The submission fails to have regard to the increases in the Appellant’s superannuation and house value and, on one level, appears to set at nought the contributions, both financial and non-financial, that the Respondent made to the relationship.

65 At the time of hearing the Appellant had, effectively, only 2 assets. The first was the house worth $400,000 and the second consisted of the amounts standing to his credit in superannuation funds totalling $165,000. There was evidence that the Appellant had borrowed money on a mortgage of the property to pay off the credit card debt of $22,200. There was no evidence of the amount of the mortgage itself - only the credit card debt.

66 In the light of what was said in Chanter v Catts about superannuation, it does not seem to me to be appropriate simply to add the value of the Appellant’s superannuation to obtain a total of the asset pool for division. The Appellant has no present access to the superannuation and will not have such access for some years to come. On the other hand, the value of his superannuation increased by approximately $30,000 from the commencement of the relationship until the time of hearing. By reason of the Trial Judge’s finding that the agreement was that the Appellant would work outside the home to earn income and the Respondent would make a non-financial contribution within the house, it is appropriate to have some regard to the amount of the increase in value of the superannuation during the period of the relationship.

67 In my opinion, it would be appropriate if the Respondent received, first, 20% of the net value of the house ($400,000 - $20,000 credit card debt = $380,000) and, secondly, half of the increase of the superannuation during the period of the relationship, on the following basis:

(a) The majority of the non-financial contribution was that of the Respondent;

(b) The majority of the financial contribution was that of the Appellant;

(c) The Respondent contributed in financial terms $58,000 in child support and family allowance;

(d) The Appellant made a contribution in non-financial terms to a much lesser extent than the Respondent, but the contribution in terms of home and garden improvement was significant;

(e) The Appellant made both a financial and a non-financial contribution in respect of the child Dylan;

(f) The relationship was a relatively short one.

68 The result is, therefore, that the Respondent is entitled to an order that the Appellant pay to her the sum of $91,000.

69 Although the Appellant has been successful in having the amount of the judgment reduced, the reduction is relatively minor. Further, the Appellant’s position was that there should be a judgment in favour of the Appellant. In those circumstances, the appropriate costs order is that each party should pay his and her own costs of the appeal.

70 The Trial Judge made costs orders including an order that the Appellant pay some costs on an indemnity basis. There was no appeal in respect of those orders, and they were not addressed in the Appellant’s written or oral submissions which sought dismissal of the Plaintiff’s case. If the appeal had been wholly successful the cost orders in favour of the Plaintiff consequential on her success below would have been set aside. The position if the appeal was partially successful was not addressed.

71 If the Appellant wishes to contend that his partial success in the appeal justifies some alteration to the cost orders below he must file and serve a Notice of Motion seeking that variation within 14 days of the publication of these reasons. Any Notice of Motion must be supported by written submissions and if necessary an affidavit to be filed and served at the same time. Any submissions and any affidavit in answer to be filed and served within a further 14 days. The Court should deal with any costs issues on the papers unless otherwise directed.

Orders

72 In my opinion, the following orders should be made:

(1) The appeal is allowed;

(2) Judgment for the Plaintiff for $110,000 on 4 August 2009 set aside;

(3) In lieu thereof, substitute, judgment for the Plaintiff for $91,000 with effect from 4 August 2009;

(4) No order as to the costs in this Court;

(5) Any variation of the cost orders below to be sought by Notice of Motion filed within 14 days of the publication of these reasons.

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12/07/2010	-	2 typographical errors in para [6]. - Paragraph(s) 6
12/07/2010	-	Typographical error - Paragraph(s) 6
13/07/2010	-	Typographical error - Paragraph(s) 6