Waterfield v Capaldi (No 2)

[2008] NSWDC 309

CITATION:	Waterfield v Capaldi (No 2) [2008] NSWDC 309
HEARING DATE(S):	3 December 2008
EX TEMPORE JUDGMENT DATE:	3 December 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	Further to the orders made on 28 November 2008: 4 The plaintiff is to pay the defendant’s costs of the proceedings, including the costs of the cross-claim. 5 The exhibits will be returned and the offer of compromise and the time lines.
CATCHWORDS:	PROPERTY (RELATIONSHIPS) ACT - costs - where plaintiff's position based on overstatement.
PARTIES:	Ivan Waterfield (Plaintiff) Emma Jane Capaldi (Defendant)
FILE NUMBER(S):	Newcastle 164/07
COUNSEL:	W J Tregilgas (Plaintiff) S C Austin (Defendant)
SOLICITORS:	Burke & Elphick (Plaintiff) Thomas Mitchell (Defendant)

JUDGMENT

1 In this matter the proceedings were heard on 26 November 2008 and reasons delivered on 28 November 2008, as a result of which I made orders concerning the adjustment of the property interests of the parties to the proceedings. The matter was adjourned to today’s date to deal with the issue of costs.

2 The defendant asks for costs on an ordinary basis, having achieved an adjustment in her favour greater than that proposed by the plaintiff. The plaintiff argues that it would be appropriate that I make no order for costs or that I award the defendant part of her costs only.

3 The defendant’s application is based upon the assertion that her cross-claim sought an adjustment of property interests as to 60 per cent to the plaintiff and 40 per cent to the defendant, which is precisely the result that was achieved as a result of the hearing. That is a correct assessment of the outcome on a percentage basis but it does not accord with the figures that are contained in the pleadings and it does not accord with the position taken by the defendant at the hearing, namely that there ought to be an adjustment in the proportions 55 and 45 per cent.

4 The plaintiff’s argument is based upon the fact that the claims of the defendant increased over time from an adjustment of $130,000 in her favour to $221,000 in her favour. However, it must be said that those sums are based upon the figures that were presented by the plaintiff which, in the course of the proceedings, it became apparent, were significantly overstated.

5 I was critical of the plaintiff’s evidence in the course of my reasons, finding that the overstatement was deliberate. Further, the plaintiff at all times took a position that involved the defendant in making an adjustment in his favour on the basis that she had already received sufficient in the course of the relationship to compensate her for her contributions.

6 I have been reminded that costs are not to be used as a tool by which to punish parties and I do acknowledge that principle. However, in this case the question is whether the defendant is to be compensated for the costs of bringing before the Court an action to receive some recognition for her appropriate contributions to the relationship, rather than being required to make payments in favour of the plaintiff.

7 In my view, the position taken by the plaintiff and involving as it did, the overstatement of his assets, left the defendant with no option but to defend the proceedings and to pursue her cross-claim and as a result the plaintiff must bear the consequences and pay her costs on an ordinary basis.

8 Further to the orders made on 28 November 2008, I add order 4.

4 The plaintiff is to pay the defendant’s costs of the proceedings, including the costs of the cross-claim.

5 The exhibits will be returned and I will return the offer of compromise and the time lines.

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