Gray v Ferguson [2008] NSWSC 1066

Gray v Ferguson [2008] NSWSC 1066

The plaintiff was substantially successful because she obtained the ability to purchase the defendant's interest and the defendant's position for sale and equal division was not accepted; however, because she did not better her offers, indemnity costs in her favour were not justified. Her clear breach of the duty to disclose her interest in a property relationships claim against her former partner caused the defendant to incur costs to establish that interest, so she must pay those costs on an indemnity basis, with the defendant otherwise to pay the plaintiff's costs of the proceedings.

Jurisdiction
Australia
Judgment Date
10 October 2008
Procedural Posture
Property (relationships) Act 1984 Proceedings; Costs Application / Judgment on Costs Following Judgment Delivered on 24 September 2008
Outcome
Costs ordered partly for the defendant on an indemnity basis and otherwise for the plaintiff.
Legal Topics
['costs Discretion' 'indemnity Costs' 'offers of Settlement' 'duty to Disclose Financial Circumstances' 'property Adjustment Between De Facto Partners']
['family Law' 'property Relationships' 'costs'] ['costs Discretion' 'indemnity Costs' 'offers of Settlement' 'duty to Disclose Financial Circumstances' 'property Adjustment Between De Facto Partners']

Case Brief

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Procedural Posture

Property (relationships) Act 1984 Proceedings; Costs Application / Judgment on Costs Following Judgment Delivered on 24 September 2008

Legal Issues

  1. 1 ["Whether the plaintiff should receive her costs on an indemnity basis, whether there should be no order as to costs, or whether the plaintiff should pay the defendant's costs." 'Whether the plaintiff was substantially successful in the Property (Relationships) Act 1984 proceedings having regard to the pleadings, offers and result.' "What costs consequence should follow from the plaintiff's failure to make full and frank disclosure of her financial circumstances."]

Ratio Decidendi

The plaintiff was substantially successful because she obtained the ability to purchase the defendant's interest and the defendant's position for sale and equal division was not accepted; however, because she did not better her offers, indemnity costs in her favour were not justified. Her clear breach of the duty to disclose her interest in a property relationships claim against her former partner caused the defendant to incur costs to establish that interest, so she must pay those costs on an indemnity basis, with the defendant otherwise to pay the plaintiff's costs of the proceedings.

Court Disposition

Costs ordered partly for the defendant on an indemnity basis and otherwise for the plaintiff.

Orders

  • ["The plaintiff pay the defendant's costs involved in establishing the plaintiff's interest in her property relationships claim against her former partner, Mr White, on an indemnity basis." "Otherwise and excepting those costs, the defendant pay the plaintiff's costs of the proceedings."]