Price v Price [2020] NSWCA 312

Price v Price [2020] NSWCA 312

The primary judge erred in applying the costs-follow-the-event principle because the substantive orders were made by consent and there was no contest or hearing on the merits, so there was no relevant 'event' for UCPR r 42.1. The primary judge also lacked the evidentiary basis to find Ms Price unreasonable. On the material before the Court of Appeal, Ms Price did not act unreasonably, whereas the respondents commenced proceedings precipitously without giving her a reasonable opportunity to respond; accordingly the proper order was no order as to costs at first instance.

Jurisdiction
Australia
Judgment Date
02 December 2020
Procedural Posture
Application for Leave to Appeal From a Costs Order / Court of Appeal; Leave Granted and Costs Order Set Aside
Outcome
Leave to appeal granted; appeal allowed; first instance costs order set aside; no order as to costs at first instance; respondents ordered to pay the applicant's costs in the Court of Appeal.
Legal Topics
['leave to Appeal From Costs Order' 'costs Following the Event Under UCPR R 42.1' 'consent Orders and Absence of an Event' 'enduring Guardianship and Enduring Power of Attorney' "reasonableness of Parties' Conduct in Costs Discretion"]
['appeal' 'costs' 'protective Jurisdiction'] ['leave to Appeal From Costs Order' 'costs Following the Event Under UCPR R 42.1' 'consent Orders and Absence of an Event' 'enduring Guardianship and Enduring Power of Attorney' "reasonableness of Parties' Conduct in Costs Discretion"]

Case Brief

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Procedural Posture

Application for Leave to Appeal From a Costs Order / Court of Appeal; Leave Granted and Costs Order Set Aside

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from a costs order where the amount in issue was substantially less than $100,000.' 'Whether the primary judge erred by applying the rule that costs follow the event under UCPR r 42.1 where the substantive orders were made by consent and there was no hearing on the merits.' "Whether Ms Price acted unreasonably so as to justify an order that she pay the respondents' costs at first instance." 'Whether the costs discretion should be re-exercised to make no order as to costs of the first instance proceedings.']

Ratio Decidendi

The primary judge erred in applying the costs-follow-the-event principle because the substantive orders were made by consent and there was no contest or hearing on the merits, so there was no relevant 'event' for UCPR r 42.1. The primary judge also lacked the evidentiary basis to find Ms Price unreasonable. On the material before the Court of Appeal, Ms Price did not act unreasonably, whereas the respondents commenced proceedings precipitously without giving her a reasonable opportunity to respond; accordingly the proper order was no order as to costs at first instance.

Court Disposition

Leave to appeal granted; appeal allowed; first instance costs order set aside; no order as to costs at first instance; respondents ordered to pay the applicant's costs in the Court of Appeal.

Orders

  • ['Grant leave to appeal.' 'Set aside the costs order, being Order 6, made by Pembroke J on 6 February 2020.' 'Note that no order is made as to the costs of the proceedings at first instance.' "Order the respondents to pay the applicant's costs of the proceedings in this Court."]