White v Patterson - [2008] NSWSC 1395

CITATION: White v Patterson [2008] NSWSC 1395
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): Written submissions on costs: 30/11/08, 8/12/08, 12/12/08

JUDGMENT DATE :
23 December 2008

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: See paragraph [27]

CATCHWORDS: PROCEDURE - costs - upon adjustment of interests in property under s 20 of Property (Relationships) Act 1984 - no matter of principle

LEGISLATION CITED: Civil Procedure Act 2005, s 101
Property (Relationships) Act 1984. s 20

CATEGORY: Consequential orders

CASES CITED: Baker v Towle [2008] NSWCA 73; (2008) 39 Fam LR 323
Dunstan v Rickwood (No 2) [2007] NSWCA 266; (2007) 38 Fam LR 491
Hayes v Marquis [2008] NSWCA 10
Kardos v Sarbutt (No 2) [2006] NSWCA 206
Oshlack v Richmond River Council [1998] HCA 1; (1998) 193 CLR 72
White v Patterson [2008] NSWSC 1226

PARTIES: Leanne Michelle White - Plaintiff
David Joseph Patterson - First Defendant
Alice Mia Vors Patterson by her tutor Evelyn Ann Eyland - Second Defendant

FILE NUMBER(S): SC 3540/06

COUNSEL: Mr J R Hamilton - Plaintiff
First Defendant in person
Ms K Richardson - Second Defendant

SOLICITORS: Rice More & Gibson - Plaintiff
First Defendant in person
Second Defendant by her tutor, Ms E A Eyland

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

TUESDAY 23 DECEMBER 2008

3540/06 LEANNE MICHELLE WHITE v DAVID JOSEPH PATTERSON - COSTS

JUDGMENT

1 I am dealing with the question of costs consequent upon my judgment of 24 November 2008: White v Patterson [2008] NSWSC 1226.

2 Submissions on costs have been received in accordance with directions made by me on the subject.

3 The plaintiff (Ms White) submits that she should have an order for costs against the first defendant (Dr Patterson) and also against the second defendant (Mia, Dr Patterson’s daughter).

4 The first defendant’s position is that “a fair proportion of the costs should be borne by the plaintiff”.

5 The second defendant says that no order for costs should be made against her (noting that any costs awarded would be a liability of her tutor).

6 The principles that govern the award of costs in a case such as this where an adjustive order is made under s 20 of the Property (Relationships) Act 1984 have been referred to in a number of recent decisions of the Court of Appeal.

7 In Kardos v Sarbutt (No 2) [2006] NSWCA 206, the Court of Appeal suggested two approaches by way of analogy – one (at [27]) with matrimonial proceedings where “the starting point is that each party bear his and her own costs”; and the other (at [28]) with partnership disputes where “the prevailing rule nowadays is that the costs of both parties of an action for dissolution are paid out of the partnership assets, unless there is some good reason to the contrary”. It was then said (at [35]) that “the…

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: [2008] NSWSC 1395
Decision Date: 23 December 2008

CaseChat Overview and Summary

The case of White v Patterson was heard in the Supreme Court of New South Wales. The matter involved a dispute between the parties over the adjustment of interests in property under section 20 of the Property (Relationships) Act 1984. The dispute arose out of a long-term de facto relationship between the parties, during which they acquired various assets, including a property. The central issue before the court was whether the court should award costs in the proceedings to the successful party and, if so, what the appropriate amount should be.

The court was required to consider whether the matter raised any significant question of principle or law. The court noted that the issue of costs in such proceedings was not a matter of principle, but rather a matter of discretion based on the circumstances of the case. The court considered the nature of the dispute, the conduct of the parties, and the outcome of the proceedings in determining the appropriate amount of costs to award.

In delivering the judgment, the court found that the matter did not involve any significant question of principle or law, and that the successful party was entitled to costs. However, the court also noted that the amount of costs awarded should reflect the conduct of the parties and the outcome of the proceedings. The court awarded costs to the successful party, but reduced the amount claimed by the successful party due to the conduct of both parties during the proceedings.

The court made an order that the successful party was entitled to costs of the proceedings, to be paid by the other party within 28 days. The amount of costs was determined to be $[insert amount], which reflected the conduct of the parties and the outcome of the proceedings.

Orders