Kardos v Sarbutt (No. 2) [2006] NSWCA 206

Kardos v Sarbutt (No. 2) [2006] NSWCA 206

Mr Sarbutt recovered less than the Local Court jurisdictional limit and was therefore not entitled to first instance costs unless the Court otherwise ordered. Neither party had substantial success at first instance or bettered a realistic offer; both were compelled to litigate to separate their property interests, neither was more responsible for the incurring of costs, and a general costs order against Ms Kardos would disproportionately affect the overall justice and equity of the outcome. However, the interlocutory and caveat costs were reasonably incurred because of Ms Kardos' conduct and there was no basis to disturb the trial judge's order on those costs. Ms Kardos substantially...

Jurisdiction
Australia
Judgment Date
27 July 2006
Procedural Posture
Costs Applications Following Appeal in Property Adjustment Proceedings Under the Property (relationships) Act 1984 / New South Wales Court of Appeal Determination on Written Submissions After Judgment Allowing Appeal
Outcome
Order 2.2 made on 14 February 2006 was set aside and replaced with a limited costs order for the caveat and interlocutory proceedings only; the application to set aside or vary Orders 3 and 4 was dismissed.
Legal Topics
['costs of Property Adjustment Proceedings' 'local Court Jurisdictional Limit' 'substantial Success' 'offers of Compromise' 'interlocutory and Caveat Proceedings' 'effect of Substituted Appellate Judgment']
['family Law' 'de Facto Relationships' 'property Adjustment' 'civil Procedure' 'costs' 'appeals'] ['costs of Property Adjustment Proceedings' 'local Court Jurisdictional Limit' 'substantial Success' 'offers of Compromise' 'interlocutory and Caveat Proceedings' 'effect of Substituted Appellate Judgment']

Case Brief

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Procedural Posture

Costs Applications Following Appeal in Property Adjustment Proceedings Under the Property (relationships) Act 1984 / New South Wales Court of Appeal Determination on Written Submissions After Judgment Allowing Appeal

Legal Issues

  1. 1 ['What costs order should be made in respect of the proceedings at first instance after the appeal reduced the property adjustment from $100,000 to $36,075.' 'Whether any special costs order should be made for the interlocutory proceedings for caveat extensions and preservation of property.' 'What costs order should be made in respect of the appeal.']

Ratio Decidendi

Mr Sarbutt recovered less than the Local Court jurisdictional limit and was therefore not entitled to first instance costs unless the Court otherwise ordered. Neither party had substantial success at first instance or bettered a realistic offer; both were compelled to litigate to separate their property interests, neither was more responsible for the incurring of costs, and a general costs order against Ms Kardos would disproportionately affect the overall justice and equity of the outcome. However, the interlocutory and caveat costs were reasonably incurred because of Ms Kardos' conduct and there was no basis to disturb the trial judge's order on those costs. Ms Kardos substantially...

Court Disposition

Order 2.2 made on 14 February 2006 was set aside and replaced with a limited costs order for the caveat and interlocutory proceedings only; the application to set aside or vary Orders 3 and 4 was dismissed.

Orders

  • ['Set aside order 2.2 made on 14 February 2006 and substitute: "That the defendant pay the plaintiff\'s costs of proceedings 13352 of 2003 in the Supreme Court, Equity Division and of the interlocutory proceedings in the District Court up to 1 April 2004, and that otherwise there be no order as to costs, to the...