Yafe v Sivyer and Trainor - [2025] QSC 53

SUPREME COURT OF QUEENSLAND

CITATION: Yafe v Sivyer and Trainor [2025] QSC 53

PARTIES: HALEY JODIE YAFE
(plaintiff)
v
EMILY IRENE SIVYER
(defendant)
And
JAMES NEIL TRAINOR
(third party)

FILE NO: BS 16146 of 2023

DIVISION: Trial Division

PROCEEDING: Claim

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON: 24 March 2025

DELIVERED AT: Brisbane

HEARING DATE: 24 February 2025

JUDGE: Martin SJA

ORDER: THE PARTIES ARE TO CONSULT AND TO BRING IN MINUTES OF ORDER REFLECTING THESE REASONS AND THE AGREEMENTS OTHERWISE REACHED BETWEEN THEM.

CATCHWORDS:
PROCEDURE – COSTS – WHERE ACTION SETTLED OR OTHERWISE DETERMINED WITHOUT HEARING – where the defendant, through the third party acting as her attorney, agreed to sell a property to the plaintiff – where the defendant defaulted in her obligations under the agreement – where the plaintiff commenced proceedings against the defendant for specific performance – where the defendant defended the proceedings and counterclaimed against the third party – where, prior to any hearing of the matter, the defendant applied for leave to withdraw her defence against the plaintiff and discontinue her counterclaim against the third party for financial reasons – where the defendant sought an order that she pay the plaintiff’s costs on the standard basis only – where the plaintiff sought an order that the defendant pay her costs on the indemnity basis on grounds that the defendant’s case was hopeless or highly speculative – where the parties sought orders that the costs payable be fixed and set off against the balance of the purchase price under the agreement - whether the award of costs should be made on the standard or the indemnity basis – whether the costs to be paid by the defendant should be fixed

Uniform Civil Procedure Rules 1999 (Qld), r 307, r 687(2)

Amos v Monsour Pty Ltd [2009] 2 Qd R 303; [2009] QCA 65, considered
Chen v Kevin McNamara & Son Pty Ltd (No 2) [2012] VSCA 229, considered
Deighton v Dewit [2021] NSWSC 852, considered
Doerr v Gardiner (No 2) [2024] QCA 21, considered
Fairfield Services Pty Ltd (in liq) v Leggett (2020) 5 QR 50; [2020] QSC 183, cited
ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270, considered
Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6, considered
Seven Network Ltd v News Ltd (2009) 182 FCR 160; [2009] FCAFC 166, considered
Willmott v McLeay [2013] QCA 84, considered

COUNSEL: M Taylor for the plaintiff
D Williams for the defendant
M Crofton for the third party

SOLICITORS: Attwood Marshall Lawyers for the plaintiff
Tusk Law for the defendant
Hall Payne Lawyers for the third party

In August 2023, Emily Sivyer agreed to sell a house and land at Burleigh Waters to Haley Yafe. In December 2023, Mrs Sivyer refused to complete the transaction. Soon after that Ms Yafe commenced proceedings seeking, among other things, specific…

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 Yafe v Sivyer and Trainor

Details

AGLC: Yafe v Sivyer and Trainor [2025] QSC 53
Case: [2025] QSC 53
Decision Date: 24 March 2025

CaseChat Overview and Summary

The dispute in Yafe v Sivyer and Trainor involved the plaintiff, Yafe, who sought specific performance of an agreement for the sale of a property from the defendant, Sivyer. The defendant, through Trainor, had initially agreed to sell the property to Yafe but defaulted in her obligations under the agreement. Yafe commenced proceedings for specific performance against Sivyer, while Sivyer defended the proceedings and counterclaimed against Trainor. Before any hearing of the matter, Sivyer applied for leave to withdraw her defence against Yafe and discontinue her counterclaim against Trainor, citing financial reasons. Sivyer sought an order for her to pay Yafe's costs on the standard basis only, whereas Yafe argued for an order that Sivyer pay her costs on the indemnity basis, claiming that Sivyer's case was hopeless or highly speculative. Both parties sought orders that the costs payable be fixed and set off against the balance of the purchase price under the agreement.

The legal issues before the court were whether the award of costs should be made on the standard or indemnity basis, and whether the costs to be paid by Sivyer should be fixed. The court had to consider the circumstances under which Sivyer withdrew her defence and counterclaim, the merits of Yafe's claim and Sivyer's defence, and the effect of the withdrawal on the allocation of costs. The court also needed to assess the financial position of Sivyer and the practicality of enforcing any costs order against her.

The court found that Sivyer's decision to withdraw her defence and counterclaim was due to financial difficulties, which led to the settlement of the action. The court determined that the award of costs should be on the standard basis as the circumstances did not warrant an indemnity order. The court further held that the costs payable by Sivyer should be fixed and set off against the balance of the purchase price under the agreement. The parties were directed to consult and bring in minutes of order reflecting these reasons and the agreements otherwise reached between them.

The court's decision provided clarity on the basis for awarding costs in situations where a defendant withdraws their defence and counterclaim due to financial reasons. The court balanced the need for a fair allocation of costs with the practicalities of enforcing any order against the defendant, ultimately directing the parties to agree on the terms of the costs order.

Orders

Orders of the court

THE PARTIES ARE TO CONSULT AND TO BRING IN MINUTES OF ORDER REFLECTING THESE REASONS AND THE AGREEMENTS OTHERWISE REACHED BETWEEN THEM.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Yafe v Sivyer and Trainor [2025] QSC 53
PARTIES:	HALEY JODIE YAFE (plaintiff) v EMILY IRENE SIVYER (defendant) And JAMES NEIL TRAINOR (third party)
FILE NO:	BS 16146 of 2023
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	24 March 2025
DELIVERED AT:	Brisbane
HEARING DATE:	24 February 2025
JUDGE:	Martin SJA
ORDER:	THE PARTIES ARE TO CONSULT AND TO BRING IN MINUTES OF ORDER REFLECTING THESE REASONS AND THE AGREEMENTS OTHERWISE REACHED BETWEEN THEM.
CATCHWORDS:	PROCEDURE – COSTS – WHERE ACTION SETTLED OR OTHERWISE DETERMINED WITHOUT HEARING – where the defendant, through the third party acting as her attorney, agreed to sell a property to the plaintiff – where the defendant defaulted in her obligations under the agreement – where the plaintiff commenced proceedings against the defendant for specific performance – where the defendant defended the proceedings and counterclaimed against the third party – where, prior to any hearing of the matter, the defendant applied for leave to withdraw her defence against the plaintiff and discontinue her counterclaim against the third party for financial reasons – where the defendant sought an order that she pay the plaintiff’s costs on the standard basis only – where the plaintiff sought an order that the defendant pay her costs on the indemnity basis on grounds that the defendant’s case was hopeless or highly speculative – where the parties sought orders that the costs payable be fixed and set off against the balance of the purchase price under the agreement - whether the award of costs should be made on the standard or the indemnity basis – whether the costs to be paid by the defendant should be fixed Uniform Civil Procedure Rules 1999 (Qld), r 307, r 687(2) Amos v Monsour Pty Ltd [2009] 2 Qd R 303; [2009] QCA 65, considered Chen v Kevin McNamara & Son Pty Ltd (No 2) [2012] VSCA 229, considered Deighton v Dewit [2021] NSWSC 852, considered Doerr v Gardiner (No 2) [2024] QCA 21, considered Fairfield Services Pty Ltd (in liq) v Leggett (2020) 5 QR 50; [2020] QSC 183, cited ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270, considered Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6, considered Seven Network Ltd v News Ltd (2009) 182 FCR 160; [2009] FCAFC 166, considered Willmott v McLeay [2013] QCA 84, considered
COUNSEL:	M Taylor for the plaintiff D Williams for the defendant M Crofton for the third party
SOLICITORS:	Attwood Marshall Lawyers for the plaintiff Tusk Law for the defendant Hall Payne Lawyers for the third party