Hollingsworth v Thompson [2010] NSWSC 1175

New South Wales Supreme Court

CITATION : Hollingsworth v Thompson [2010] NSWSC 1175

HEARING DATE(S) : 13 October 2010 JURISDICTION : Equity Division

JUDGMENT OF : Hamilton AJ

EX TEMPORE JUDGMENT DATE : 13 October 2010

DECISION : As and from 6 August 2010 the plaintiff to pay the first defendant's costs of the proceedings, otherwise no order as to costs.

CATCHWORDS : FAMILY LAW AND CHILD WELFARE [500] – De Facto Relationships – Adjustment of property interests – Other matters – Costs – Relevant principles

LEGISLATION CITED : Property (Relationships) Act 1984 Uniform Civil Procedure Rules 2005, r 42.1

CATEGORY : Consequential orders

Baker v Towle [2008] NSWCA 73 Bilous v Mudaliar (2006) 65 NSWLR 615 CASES CITED : Dunstan v Rickwood (No 2) (2007) 38 Fam LR 491 Hayes v Marquis [2008] NSWCA 10 Hollingsworth v Thompson [2010] NSWSC 1033 Kardos v Sarbutt (No 2) (2006) 34 Fam LR 550

Plaintiff - Allan Francis Hollingsworth PARTIES : Defendant 1 - Peta Marie Thompson Defendant 2 - L & L Luxor PTY Limited ACN 075 937 503

FILE NUMBER(S) : SC 2008/277274

Plaintiff - Mr David Dura COUNSEL : Defendant 1 - Mr C Simpson SC Defendant 2 - No appearance

Plaintiff - Doyle Edwards Anderson Lawyers Pty Ltd SOLICITORS : Defendant 1 - Christopher Hughes Family Lawyer, Lismore Defendant 2 - No appearance

- 4 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON AJ

WEDNESDAY 13 OCTOBER 2010

2008/277274 Allan Francis Hollingsworth v Peta Marie Thompson and L & L Luxor PTY Limited ACN 075 937 503 JUDGMENT Ex Tempore - Costs 1 HIS HONOUR: This is a matter under the Property (Relationships) Act 1984 ("the PRA"), in which I delivered judgment on 24 September 2010: Hollingsworth v Thompson [2010] NSWSC 1033. The parties were engaged in a de facto relationship for more than 20 years and there was one child of the relationship.

2 Although at earlier stages of the proceedings there were various issues, the proceedings as they were conducted at the trial before me turned on the question of whether, out of the proceeds of a property at Bondi Junction, which had been the family home ("the Bondi Junction property"), the first defendant should have 70%, as she claimed, or only 50%, representing her legal interest in the property, as the plaintiff contended. In the result I awarded her 62.5%.

3 The claim to 70% was made by the first defendant, as I see it, essentially on two bases. The first was that she had contributed more than 50% towards the cost of acquisition of the Bondi Junction property. The second was that her contribution to the relationship as homemaker and in relation to the parenting of the child was considerably greater than that of the plaintiff, who urged that their contributions should be regarded as equal.

4 It was put to me by Mr Dura, of counsel for the plaintiff, on the costs argument, that there was a third ground that was argued, as to whether she had contributed to the purchase of a property at Artarmon, which was in the sole name of the plaintiff ("the Artarmon property"). But I do not really regard this as a separate issue; insofar as it was contested at the trial, it was caught up with the general issue of the degree of her financial contributions.

5 The first defendant claims to be entitled to an order for her costs of the proceedings from 6 August 2010. On that day, issues in the case were simplified and the case was thereafter conducted in the fashion that I have described. Furthermore, she made an offer on that day, which is said to have some significance on the issue as to costs. I find it hard to see how her offer can be regarded as having any such significance.

6 The plaintiff also contends that because as of that date the question of the value of the Bondi Junction property had not been finalised, the costs order, if any, should be from a later date, perhaps 3 or 6 September. I do not really see the relevance of the settlement of the valuation issue as being material to the question of the costs order and it seems to me that, if I make a costs order, it should be made as and from 6 August 2010.

7 The plaintiff opposes the making of any costs order, saying that taking into account - as I agree I should - all the relevant circumstances of the case, the fair result is an order that there be no order as to the costs of the proceedings.

8 The law regarding the proper approach to the costs of proceedings under the PRA has been in some flux of late times. In the Court of Appeal in Kardos v Sarbutt (No 2) (2006) 34 Fam LR 550, Brereton J expressed a view that the starting point in the consideration of costs in PRA proceedings should be that each party bear his or her own costs. In subsequent decisions in the Court of Appeal, that approach has been disapproved and it has been held that the general approach under r 42.1 of the Uniform Civil Procedure Rules 2005 - namely, that the starting point is that costs should follow the event - should apply: see Bilous v Mudaliar (2006) 65 NSWLR 615 at [62]; Dunstan v Rickwood (No 2) (2007) 38 Fam LR 491 at [40]; Hayes v Marquis [2008] NSWCA 10 at [14] and [145]; and Baker v Towle [2008] NSWCA 73 at [3] to [6]. It is, of course, on this latter basis that I proceed.

9 In PRA proceedings it is not always entirely easy to identify "the event" within r 42.1 that costs should follow: see Baker v Towle at [20] per Beazley JA.

10 Furthermore, whilst there is a familiar line of cases that the fact that a plaintiff, whilst obtaining a favourable result, does not obtain all that was sought, should not diminish the award of costs: see Baker v Towle at [84] per Basten JA. However, Basten JA in that case continued to say that whilst that rule was undoubtedly applicable in the case of a failure to obtain all the damages that were sought in an action for breach of contract or negligence, different considerations may be taken to apply in the case of an adjustment of interests under the PRA. His Honour said:

"However, in a case involving adjustment of interests in assets, it may be thought that justice is best done by an apportionment of costs depending upon the plaintiff's degree of success. The trial judge was not in error in adopting that approach in the present case..."

11 I do not accept the plaintiff's contention that in all the circumstances of this case the successful first defendant should not obtain any award of costs. However, in my view, there are reasons why the award during the relevant period should not be for the whole of her costs, but only of a proportion of them. This, I think, is rendered just by the proportionate nature of her success. In this case there is a further consideration that militates against her obtaining the whole of her costs. I have already indicated that there were different issues agitated in relation to the adjustment of property and with different results. 12 There is a well-known line of cases that where there are discrete issues with different results, costs may be ordered discretely in relation to those results. I do not think that this is a case where that approach is appropriate. It would be a difficult and complicated exercise to identify the appropriate proportion of the trial that was taken up by the financial contribution issue. Furthermore, I do not have detailed submissions from either party as to how that issue should be apportioned. However, the fact that the first defendant failed on one of the principal issues which she agitated seems to me to support the conclusion that she should have less than 100% of her costs during the relevant period.

13 It has been put to me by Mr Simpson, of Senior Counsel for the first defendant, that if I am minded to award less than 100% of the costs, the award should be for two-thirds of the costs. Mr Dura has contended for the plaintiff that there were really three issues, on two of which the first defendant lost, and that the order in her favour should be for no more than one-third of her costs.

14 The conclusion that I have myself come to is that two-thirds of the costs is the appropriate proportion to be awarded in the first defendant's favour. 15 The order of the Court as to costs will therefore be that as and from 6 August 2010 the plaintiff should be ordered to pay the first defendant's costs of the proceedings, otherwise no order as to costs. **********

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