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  • Unreported Judgment

LAB v AWH (No. 2)

 

[2010] QSC 21

 

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

5 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

McMurdo J

ORDER:

The application for costs is dismissed.

CATCHWORDS:

PROCEDURE – COSTS –NATURE OF PROCEEDINGS – DE FACTO RELATIONSHIP – where applicant succeeded on determination of separate question – whether circumstances justify an order for costs under Property Law Act 1974 (Qld), s341(4)

Property Law Act 1974 (Qld), Pt 19, s 341, s 341(4)(e)

LAB v AWH [2009] QSC 310

SOLICITORS:

DK Law for the applicant

Fitz-Walker Lawyers for the respondent

[1] In these proceedings brought under Pt 19 of the Property Law Act 1974 (Qld), it was ordered by consent that it be determined as a separate question whether the parties were in a de facto relationship.  After a three day trial I declared that they were in a de facto relationship from December 1999 until July 2007.  The principal proceedings are yet to be determined.

[2] The applicant seeks an order for the costs of and incidental “to this Application”.  By that she seems to mean the cost of the determination of that separate question upon which she was successful.  The respondent says that there should be no order, there being no basis for departing from the general rule that each party should bear his or her own costs:  s 341.

[3] Section 341(4) provides that in considering whether there are circumstances justifying an order for costs, the court must consider certain matters, the first of which are the income, property and financial resources of each of the parties.  I am limited in my assessment of those matters because I have not tried the entire proceeding.  But as should appear from the judgment[1], the applicant is without substantial property and the respondent appears to be well off, owning an expensive house on the Gold Coast and conducting what appears to have been a profitable business.  Most of the applicant’s savings appear to have been invested in that business and at the hearing remained there.  There is no mention of legal aid. 

[4] A further matter to be considered is the conduct of each of the parties in relation to the proceeding.  The applicant argues that she has conducted her case in all respects according to the rules but the respondent’s conduct has been deficient in a number of respects.  It is said that he failed to provide any substantive facts in his affidavit as to his financial position sworn in March 2008.  Reference is made to my findings as to the falsity of his evidence in some respects.  However, the issue as to the existence of a de facto relationship was, as I remarked[2], the result of different perspectives of the relationship.  In other words, overall I thought the respondent had a genuine belief that there was not a de facto relationship, although he is certainly to be criticised for the respects in which I found his evidence to lack credibility.  Otherwise I do not accept that his conduct of the proceedings to the stage of my judgment was so wanting as to provide a substantial basis for an order for costs. 

[5] The applicant refers to the consideration in s 341(4)(e), and says that the respondent has been wholly unsuccessful in the proceeding.  However, this involves a misunderstanding of that provision.  The proceeding is yet to be determined.  The respondent may not be wholly unsuccessful, in that the applicant’s claim, for example, might succeed but in a very small sum.  She has been wholly successful on the preliminary question but that is different from success in the proceeding.

[6] The applicant is critical of what she says is the “respondent’s election to seek a trial of the separate issue”, saying that this has caused significant duplication of resources because the trial of that question traversed much of what was in issue between the parties such that a trial of the whole proceeding would not have taken much longer.  However, it was by consent that this question was tried as a preliminary question and there is no basis for imposing costs upon the respondent from this point.

[7] Overall I am not persuaded that the circumstances warrant a departure from the usual rule, according to s 341(1), that a party to a proceeding such as this should bear its own costs.  The application for costs is dismissed.

Footnotes

[1] LAB v AWH [2009] QSC 310.

[2] [2009] QSC 310 at [21].

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Editorial Notes

  • Published Case Name:

    LAB v AWH (No. 2)

  • Shortened Case Name:

    LAB v AWH (No. 2)

  • MNC:

    [2010] QSC 21

  • Court:

    QSC

  • Judge(s):

    McMurdo J

  • Date:

    05 Feb 2010

Litigation History

No Litigation History

Appeal Status

No Status