TD v GP
[2006] QDC 385
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- Unreported Judgment
- TD v GP[2006] QDC 385
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TD v GP[2006] QDC 385
TD v GP[2006] QDC 385
DISTRICT COURT OF QUEENSLAND
CITATION: | TD v GP [2006] QDC 385 |
PARTIES: | TD plaintiff v GP Defendant |
FILE NO/S: | 3574 of 2005 |
DIVISION: | Civil |
PROCEEDING: | Decision on Costs |
ORIGINATING COURT: | District Court Brisbane |
DELIVERED ON: | 17 November 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Submissions received in writing |
JUDGE: | Ryrie DCJ |
ORDER: | 1. In respect of the plaintiff’s claim pursuant to the Property Law Act 1974 (which was dismissed), the plaintiff pay to the defendant his costs to be assessed on a standard basis from the 27 July 2005. 2. In respect of the plaintiff’s claim, in the alternative, for damages for breach of a deed (which the plaintiff was only partly successful), the defendant pay to the plaintiff her costs to be assessed on a standard basis and on the magistrates court scale until 27 July 2005 and thereafter the plaintiff pay the defendant’s costs to be assessed on a standard basis and on the magistrate courts scale. 3. In respect of the defendant’s counterclaim (which the defendant was wholly successful), the plaintiff pay to the defendant his costs to be assessed on a standard basis and on the magistrate courts scale. |
CATCHWORDS: | COSTS Property Law Act 1974, Part 19, s 341 Uniform Civil Procedure Rules r 361, 689 & 704 |
COUNSEL: | Mr G Waterman for the plaintiff Mr P Hackett for the defendant |
SOLICITORS: | Mullins Lawyers for the plaintiff Hirst & Co for the defendant |
Background
- [1]The plaintiff had sought relief in this court by claim pursuant to Part 19 Property Law 1974 for a property adjustment order based upon a claim that the parties had been in a de facto relationship together.
- [2]She also sought alternative relief for damages for breach of a deed dated 9th August 1999.
- [3]Judgment was subsequently delivered in this matter on the 11th October 2006 at which time I invited both parties to deliver submissions in writing regarding the question of costs.
- [4]Submissions were then delivered on that question for my consideration.
- [5]The respective Outline of Submissions have each been marked as an Exhibit for the purpose of this decision.
The parties’ respective arguments
- [6]The plaintiff says that in respect of the plaintiff’s claim pursuant to the Property Law Act 1974, no order as to costs should be made.
- [7]In essence, the plaintiff says that even though the plaintiff was unsuccessful in establishing that a de facto relationship existed between the parties, no order as to costs should be made, consistent with the decision of S v B [2004] QCA 449, in particular at para [53].
- [8]The plaintiff also referred to the costs regime set out in s 341 of the Property Law Act 1974 in support of his submission that no order as to costs should be made, with particular reliance on the significant disparity which currently exists between the respective parties’ financial positions.
- [9]That financial disparity is set out in the plaintiff’s Outline of Submissions.
- [10]In respect of the plaintiff’s alternative claim (which was allowed in part), the plaintiff submits that the defendant should be ordered to pay the plaintiff’s costs on a standard basis, to be assessed on the magistrates court scale.
- [11]Finally, in respect of the defendant’s counter claim (which the defendant was wholly successful), the plaintiff says that the plaintiff should only be required to pay (if any order is to be made at all), the defendant his costs on a standard basis (rather than on an indemnity basis), to be assessed on the magistrates court scale.
- [12]The counter argument by the defendant, as it relates to the plaintiff’s Property Law Act 1974 claim, is essentially divided into two parts.
- [13]Firstly, because the plaintiff was wholly unsuccessful in respect of her claim pursuant to the Property Law Act 1974, it follows that any costs regime set out in s. 341 of the Act has no application, and as such, the question of costs ought to be determined in the exercise of the court’s general discretion under r. 469 of the UCPR.
- [14]Secondly, if it is accepted that the costs regime under the Property Law Act 1974 does have application, then an order as to costs should still be made, particularly after reference is had to those matters set out for consideration in s. 341(4) and specifically relied upon by the defendant in his Outline of Submissions.
- [15]The defendant also argues that any order as to costs made by this court should include an order that those costs be assessed on an indemnity basis, from the point when a formal offer to settle was made by the defendant, namely the 27 July 2005.
- [16]In support of that submission, the defendant has relied upon the relevant rule of the UCPR and relevant case authorities.
Does s. 341 of the Property Law Act 1974 have any application?
- [17]The situation that arises here is that the plaintiff was not successful in establishing at all that a de facto relationship existed between the parties.
- [18]The case authorities to which I have been referred certainly raises the question whether, in those circumstances, it can be said that the costs regime set out in that Act therefore has any real application.
- [19]Certainly in Grace v Jeneka [2002] QCA 335 the court acknowledged that s. 341 of the Act was introduced to give effect to a different costs regime with regard to property disputes between partners or former partners to de facto relationships from the costs regime which applies to most civil litigation before the courts of this State.
- [20]In S v B [2004] QCA 44 at para [53], Justice Dutney considered that s. 341 still provided a useful guide as to the way costs order should be made in case such as this, notwithstanding that the effect of the courts’ judgment in that case was that s. 341 of the Property Law Act 1974 had no application. (see also the observations of Justice Ambrose in Chung v McKinnirey [2003] QSC 190 at para [11] regarding whether the ‘purported’ proceedings also fell within the Act).
- [21]Accordingly, it would seem then, in respect of this case that the relevant costs regime under the Property Law Act 1974 cannot be said to have any real application other than that to which I have just referred.
- [22]Notwithstanding that view, as both parties have made submissions on the application of s. 341, I consider it appropriate that I deal with it in the event that it is considered relevant.
- [23]Subsection 4 of section 341 states that the court must consider the matters listed in that subsection.
- [24]Thus it is necessary to address all of the matters contained in that subsection:
- (a)‘income property and financial resources of each of the parties’
- [25]There is no dispute between the parties that there is real disparity between the parties as it relates to their respective property and financial resources.
- [26]Indeed, the documentation available supports the plaintiff’s submission that that disparity is ‘significant’ (see trial exhibit 28).
- [27]However, I cannot accept the plaintiff’s submission that the parties’ income was significantly different, particularly if the whole of the period during 1999 to 2006 is considered. For example, even if I accept the plaintiff’s submission that the plaintiff’s income for the 2006 year was in fact $44,547 and the defendant’s income for that same year was ‘most probably’ in the order of $70,000, the total earnings by the plaintiff and the defendant during 1999 to 2006 was $412,175 and $376,483 respectively.
- [28]Thus any disparity between the parties is only relative to their respective property and financial resources rather than respective earnings.
- (b)‘whether any party has legal aid and the terms of the legal aid’
- [29]not relevant
- (c)‘the conduct of each of the parties in relation to the proceeding including, for example, conduct about the pleadings, particulars, disclosure, inspection interrogatories, admissions of acts and production of documents’
- [30]I accept the plaintiff’s submission that the plaintiff has not failed in any respect in terms of compliance with the rules of the court, directions, any orders and the like.
- [31]However, the defendant argues that the plaintiff’s conduct generally had the effect of accentuating costs because of the way she conducted her case (set out in para 3(c) in the Outline of Submissions).
- [32]Those submissions certainly have, in my view, some merit particularly when viewed against the background of the offer which had been made on the 27 July 2005 by the defendant to settle the matter.
- (d)‘Whether the proceeding results from the party’s failure to comply with a previous order made under this part’
- [33]not relevant
- (e)‘whether any party has been wholly unsuccessful in the proceedings’
- [34]Clearly this is a factor of some significance in this case in light of the fact that the plaintiff’s claim was ultimately dismissed.
- (f)‘whether any party made an offer to settle under the UCPR and the terms of the offer’
- [35]This is another factor which I consider to be of significance.
- [36]On the 27 July 2005, the defendant had made the plaintiff an offer to settle (marked now as an exhibit for the purpose of this decision).
- [37]That offer was made shortly after the parties had exchanged their List of Documents but before any directions were given regarding the future conduct of the matter (see File Index document no. 12).
- [38]The defendant’s offer to settle was clearly greater than the outcome for the plaintiff.
- [39]Notwithstanding that offer, the plaintiff continued with her claim under the Property Law Act 1974 to trial.
- [40]As I have already indicated, the matters raised by the defendant in respect of (c) above certainly makes consideration of this matter to be of some real significance, particularly in the case here, where a plaintiff has been wholly unsuccessful at trial.
- (g)‘any fact or circumstances the court considers the justice of the case requires to be taken into account’
- [41]The plaintiff submits that given the plaintiff was wholly unsuccessful in her claim coupled with the current financial disparity between the parties, the court cannot ignore the practical implications that any costs order may now have for the plaintiff.
- [42]The defendant on the other hand submits that given she was wholly unsuccessful against the background of a reasonable offer having being made to settle the matter, the plaintiff’s continuation with the proceedings after that point was both manifestly excessive and opportunistic.
- [43]As in most cases such as this, both parties’ submissions carry force and accordingly, in the end, this court must made a decision, after taking into all the relevant circumstances, that it considers appropriate.
- [44]After careful consideration of all the relevant matters put before me, I have come to the following conclusions.
- [45]In respect of the plaintiff’s claim pursuant to the Property Law Act 1974, I order that the plaintiff pay to the defendant his costs to be assessed on a standard basis from the 27 July 2005.
- [46]Regardless of which costs regime may be the more appropriate in this case, (whether that be the one that exists under s. 341 of the Property Law Act 1974 or the costs regime which exists under r. 689 UCPR), the order which I have made would have still been one of the same.
- [47]For example, even if I was to accept that s. 341 of the Property Law Act 1974 is the more appropriate costs regime here, I do not consider that ‘no order as to costs’ should be made in this case.
- [48]In arriving at that conclusion, I have taken into account those matters set out in subsections (1), (2) and (4) of section 341, and in particular any significant financial disparity between the parties, the types of orders that are usually made in cases such as this (as observed by Justice Dutney in S v B), the rejection by the plaintiff of the defendant’s offer to settle at a time well prior to the trial of this matter (which was of 4 days duration) and the fact that the plaintiff was ultimately unsuccessful in her claim.
- [49]However, as I already indicated, the more appropriate costs regime to be applied here, in my view, is in accordance with r.689 of the UCPR.
- [50]When exercising my discretion under that rule, I have taken into account the relevant competing considerations namely the observations made at para [53] in S v B insofar as the costs regime which exists under the Property Law Act 1974 still provides ‘a useful guide’ even in a case such as this where the plaintiff was ultimately unsuccessful and, the rejection by the plaintiff of the defendant’s offer to settle at a point well prior to the trial of this matter which took place over 4 days.
- [51]I have also read the case authorities provided to me for my assistance as it relates to the question of indemnity costs and the relevant principles stated therein.
- [52]While it is true that the plaintiff has totally failed in her claim under the Property Law Act 1974, and indeed, rejected the defendant’s timely offer to settle this matter, I am still not persuaded, when taking into account all of the relevant factors I have just mentioned, that the circumstances of this case warrant the exercise of my discretion to award indemnity costs.
- [53]In respect of the plaintiff’s claim, in the alternative, for damages for breach of a deed which she was only partly successful, I order that the defendant pay to the plaintiff her costs to be assessed on a standard basis and on the magistrates court scale until 27 July 2005 and thereafter the plaintiff pay the defendant’s costs to be assessed on a standard basis and on the magistrates courts scale.
- [54]I have come to this determination in accordance with r. 361 UCPR. I can see no reason why that rule shouldn’t apply having considered all the circumstances of this case.
- [55]In respect of the defendant’s counterclaim (which he was wholly successful), I order that the plaintiff pay to the defendant his costs to be assessed on a standard basis and on the magistrates court scale.
- [56]I have come to this determination in accordance with r. 689 UCPR. I can see no reason why that rule shouldn’t apply having considered all the relevant circumstances of this case.
- [57]Therefore my orders shall be:
- In respect of the plaintiff’s claim pursuant to the Property Law Act 1974 (which was dismissed), the plaintiff pay to the defendant his costs to be assessed on a standard basis from the 27 July 2005.
- In respect of the plaintiff’s claim, in the alternative, for damages for breach of a deed (which the plaintiff was only partly successful), the defendant pay to the plaintiff her costs to be assessed on a standard basis and on the magistrates court scale until 27 July 2005 and thereafter the plaintiff pay the defendant’s costs to be assessed on a standard basis and on the magistrate courts scale.
- In respect of the defendant’s counterclaim (which the defendant was wholly successful), the plaintiff pay to the defendant his costs to be assessed on a standard basis and on the magistrate courts scale.