Turnbull v Turnbull [2022] NSWSC 350

Turnbull v Turnbull [2022] NSWSC 350

Each party should bear its own costs because the plaintiffs were not properly characterised as successful parties: the caveat had already been withdrawn after the defendant gave instructions to withdraw it, the order for withdrawal was not a determination on the merits or a mere capitulation, the defendant had been willing to withdraw the caveat if the sale proceeds were protected, no agreement was reached, and the defendant then reasonably pursued interim relief in the Federal Circuit and Family Court, which she obtained. In all the circumstances neither side acted unreasonably in the relevant course it took.

Jurisdiction
Australia
Judgment Date
29 March 2022
Procedural Posture
Costs Application in Proceedings Seeking Withdrawal of a Caveat / On the Papers After the Caveat Had Been Withdrawn and the Question of Costs Remained Unresolved
Outcome
Each party to bear its own costs of the proceedings.
Legal Topics
['withdrawal of Caveat' 'costs Discretion' 'proceeds of Sale' 'interim Relief in Federal Circuit and Family Court' 'matrimonial Dispute']
['costs' 'equity' 'real Property'] ['withdrawal of Caveat' 'costs Discretion' 'proceeds of Sale' 'interim Relief in Federal Circuit and Family Court' 'matrimonial Dispute']

Case Brief

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Procedural Posture

Costs Application in Proceedings Seeking Withdrawal of a Caveat / On the Papers After the Caveat Had Been Withdrawn and the Question of Costs Remained Unresolved

Legal Issues

  1. 1 ["Whether the plaintiffs should have their costs of proceedings commenced to obtain withdrawal of the defendant's caveat." 'Whether the plaintiffs should be regarded as successful parties where the caveat was withdrawn before the consent order and the defendant obtained interim relief concerning the sale proceeds.' 'Whether each party should bear its own costs in all the circumstances.']

Ratio Decidendi

Each party should bear its own costs because the plaintiffs were not properly characterised as successful parties: the caveat had already been withdrawn after the defendant gave instructions to withdraw it, the order for withdrawal was not a determination on the merits or a mere capitulation, the defendant had been willing to withdraw the caveat if the sale proceeds were protected, no agreement was reached, and the defendant then reasonably pursued interim relief in the Federal Circuit and Family Court, which she obtained. In all the circumstances neither side acted unreasonably in the relevant course it took.

Court Disposition

Each party to bear its own costs of the proceedings.

Orders

  • ['Each party bear its own costs of the proceedings.']