Dunstan v Rickwood

Submissions 16 Mr R Maurice who appeared for the respondent submitted that the Court should order the appellant to pay the respondent's costs as and from August 2004. It is not clear why he selected that date rather than the commencement of the proceedings insofar as he sought costs on the ordinary, rather than indemnity, basis. Mr Maurice also contended that given the unrealistic and exorbitant nature of the appellant's original claim, the unreasonableness of his various offers and his rejection of the respondent's offers, the Court should order the appellant to pay the respondent's costs on an indemnity basis. 17 Mr Maurice also relied, in support of the indemnity costs application, on the respondent's two offers to settle for the transfer to her of the appellant's half interest in Ainslie property without payment. He contended that these offers demonstrated that as early as August 2004, and as late as the day of the trial, the appellant could have saved himself payment of any lump sum to the respondent as well as the significant legal costs the parties incurred. 18 Mr Maurice annexed to his submissions the Bill of Costs prepared on behalf of the respondent for costs incurred from August 2004. This was annexed in case the Court was "minded to assess costs", an exercise this Court would not undertake. According to the Bill the respondent's costs from August 2004 amount to $63,446.91 19 Mr G Brzostowski of Senior Counsel, who appeared for the appellant, submitted that the Court's starting point in consideration of costs should be that each party pay their own costs of the trial (relying on Kardos v Sarbutt (No 2) [2006] NSWCA 206 (at [29]-[35])) or that the appellant should pay such percentage of the respondent's costs as the Court saw fit. 20 As to the respondent's application for indemnity costs, Mr Brzostowski conceded that the 5 August letter was some evidence of an offer in August 2004. He argued, however, that there was no evidence of its full terms, the circumstances in which it was made (in particular, whether it could be characterised as a Calderbank letter) or how long it was open for acceptance. He submitted that, if anything, the offer was an invitation that the appellant capitulate and walk away from the proceedings. Further, given that the respondent did not reply to the appellant's request to explain the August 2004 offer, he argued it was not made in an effort to reach a genuine compromise and that the appellant's conduct in not responding could not be characterised as unreasonable.

21 Mr Brzostowski also disputed the seriousness of the respondent's second offer. He accepted that it resembled an offer of compromise, but, again, contended it was also little more than a "walk away" offer and was delivered too late to allow for reasonable consideration of its terms. He submitted that in the circumstances, the second offer should not be used to ground a claim for indemnity costs: Ghunaim v Bart (No 2) [2006] NSWCA 82; Fordyce v Fordham & Anor (No 2) [2006] NSWCA 362. He also contended that by the time the offer was made, costs had already been incurred for the second day. He argued that given that a large part of the first day of the trial was taken up with argument about the respondent's ultimately unsuccessful jurisdictional challenge, the appellant should be entitled to a set off for related costs.

22 Mr Brzostowski also made submissions as to the costs of the appeal. These have not been considered as the parties were not given liberty to make submissions on that question. Consideration 23 As I have said the proceedings were commenced in 2003. However the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 apply, notwithstanding they commenced operation in August 2005: see Civil Procedure Act, Schedule 6, cl 5(1). 24 Section 98(1) of the Civil Procedure Act relevantly provides that "[s]ubject to rules of court and to this or any other Act…(a) costs are in the discretion of the court, and … (c) the court may order that costs be awarded on the ordinary basis or an indemnity basis". The "ordinary basis" is set out in s 364 of the Legal Profession Act 2004: s 3, Civil Procedure Act 2005. 25 The power conferred by s 98(1) is subject to UCPR cl 42.1 which prescribes that costs should follow the event, unless it appears to the court that some other order should be made as to the whole or any part of the costs. 26 The ambit of the discretion conferred by s 69(2) of the Land and Environment Court Act 1979, which is in substantially the same terms as s 98(1), was considered by Gaudron and Gummow JJ in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (footnotes omitted): "[21] The provisions of s 69 of the Court Act which confer upon the Court the discretion exercised by the primary judge attract the application of the general proposition that it is inappropriate to read a provision conferring jurisdiction or granting powers to a court by making conditions or imposing limitations which are not found in the words used. The necessity for the exercise of the jurisdiction or power by a court favours a liberal construction. Considerations which might limit the construction of such a grant to some different body do not apply . [22] The terms of s 69(2) contain no positive indication of the considerations upon which the Court is to determine by whom and to what extent costs are to be paid. The power conferred by the section is to be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent. However, subject to such considerations, the discretion conferred is, to adapt the words of Dixon J, unconfined except in so far as 'the subject matter and the scope and purpose' of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to be 'definitely extraneous to any objects the legislature could have had in view'." (emphasis added).

The views their Honours expressed in [21] were sourced to Earl Loreburn LC's statement in Hyman v Rose [1912] AC 623 at 631 that: "It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the Court where the conditions are not based upon statutory enactment at all." 27 Gaudron and Gummow JJ accepted (at [35]) that courts developed practices or guidelines in administering the discretion conferred by provisions such as s 98(1), but added: "…Observations by Brennan J in Norbis v Norbis are in point. His Honour said 'It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that the principles may harden into legal rules which would confine the discretion more narrowly than the Parliament intended. The width of a statutory discretion is determined by the statute; it cannot be narrowed by a legal rule devised by the court to control its exercise.' It is in that sense that there is to be understood the earlier statement in this Court as to the existence of 'a general rule that a wholly successful defendant should receive his costs unless good reason is shown to the contrary'." 28 With those observations in mind I turn to Kardos v Sarbutt (No 2) upon which the appellant relies as warranting departure from the general rule in UCPR 42.1. 29 Kardos v Sarbutt (No 2) was a defendant's appeal from an order of the District Court in proceedings for property adjustment under the Act in which the Court allowed the appeal and substituted an adjustment of $36,075 in the plaintiff's favour for the award of $100,000. The appellant argued that the respondent ought not be awarded costs in respect of the trial, contending that the order made in the respondent's favour was within the jurisdiction of the Local Court and thus the costs recoverable were limited by District Court Rules 1973 Pt 39A r 12. He also submitted that in considering the principle that costs follow the event, the Court ought take into consideration s 117 of Family Law Act 1975 (Cth) which creates what Brereton J (at [13]) described as "the prima facie position … that each party bear his and her own costs": Kardos v Sarbutt (No 2). 30 Brereton J (with whom Basten JA and Hunt AJA agreed) accepted (at [14]) that proceedings under the Act were not subject to s 117 and that pursuant to s 98, costs lay in the general discretion of the court. He rejected (at [16]) the submission that DCR Pt 39A r 12 applied, as it limited costs in relation to proceedings where the amount the plaintiff recovered did not exceed $10,000. He identified (at [16]-[19]) the starting point for consideration of the question of costs of the trial as Supreme Court Rules 1970 Pt 52A r 34, as applied by DCR Pt 51D r 1 (or their corresponding UCPR successors), "namely that Mr Sarbutt having recovered less than the jurisdictional limit of the Local Court is not entitled to costs unless the Court otherwise orders". 31 After analysing a number of authorities in cases under the Act where only a small adjustive order had been made (see [20]-[24]), his Honour concluded that they suggested that "in proceedings for de facto property adjustment, whether or not a costs order is made, and/or 'capped' will be influenced by a number of considerations, that do not typically affect ordinary money claims": Kardos v Sarbutt (No 2) (at [25]). 32 His Honour then formulated considerations which led him to conclude that in proceedings for de facto property adjustment, "the starting position should be that each party should bear its own costs": Kardos v Sarbutt (No 2) (at [35]) per Brereton J. 33 Brereton J based his statement in par [35] upon what he described as the second and third considerations, they being: 27 The second consideration is the analogy with matrimonial proceedings, in which the starting point is that each party bear his and her own costs. In this respect, the Law Reform Commission Report (NSWLRC 36 (1983)), 'De Facto Relationships', which presaged the introduction of the predecessor of the Property (Relationships) Act 1984, although containing extensive reference to provisions of the Family Law Act , by way of comparison and contrast with the proposed jurisdiction to adjust financial relations between de facto partners, has no specific discussion of costs. There appears to have been no consideration as to whether the approach of Family Law Act , s 117 should be adopted. In respect of the enforcement of orders, the Law Reform Commission Report envisaged that the rules of court relating to the enforcement of its ordinary judgments and orders would cover the enforcement of judgments given or orders made pursuant to the adjustive property jurisdiction; it may be inferred that the question of costs in such proceedings was likewise not seen as requiring special consideration, but would fall in the court's general discretion as to costs.

28 However, the costs of adjusting property interests consequent upon the failure of a domestic relationship are an incident of the failure of a joint relationship, usually without attributable fault. In this sense, there is an analogy with partnership disputes. In partnership proceedings, it was once the rule that no costs would be given up to the decree directing the account, a position that was not departed from except in cases of gross misconduct [ Hawkins v Parsons (1862) 8 Jur (NS) 452; Parsons v Hayward (1862) 4 De GF&J 474]. The prevailing rule nowadays is that the costs of both parties of an action for dissolution are paid out of the partnership assets, unless there is some good reason to the contrary [ Hamer v Giles (1879) 11 Ch D 942], except where the action is one which in substance is to try some disputed right, in which case the unsuccessful party will be ordered to pay the costs [ Hamer v Giles; Warner v Smith (1863) 9 Jur (NS) 169]. The costs of taking accounts, although disputed, are usually defrayed out of the partnership assets [ Butcher v Pooler (1883) 24 Ch D 273; Newton v Taylor (1827) 19 Eq 14]. Similarly, in proceedings under Conveyancing Act, s 66G, for the appointment of trustees of sale of jointly held land, the costs are usually paid out of the proceeds, the rationale being that the costs of such an application are an incident of joint ownership. 29 In this type of litigation, it is artificial to resolve liability for costs according to the accident of who is plaintiff and who is defendant, so as to leave a plaintiff free to litigate confident that he will receive costs however unreasonable his claim, unless the defendant betters her offer. There is no reason why the defendant should bear the risk of costs to the exclusion of the plaintiff where neither makes a realistic offer. Similar views have been expressed by Hislop J, with whom Mason P and Ipp JA agreed, in Vollmer v Hauber Davidson [2006] NSWCA 79, as follows (at [21]):- 'a) In the absence of agreement between the parties it was necessary for them to resort to the courts, whether pursuant to the Act, the Conveyancing Act 1919 s 66G or general equitable principles to obtain finality in respect of their property interests. b) The parties were unable to reach agreement in respect of the adjustment of their interests, neither being prepared to make a realistic settlement offer to the other. c) In these circumstances the commencement of the court proceedings was necessary from the perspective of each party, not just the respondent. d) The fact that the respondent issued a Statement of Claim and the appellant a Cross-Claim, rather than vice versa, was a chance event. Accordingly it should not be regarded as a relevant factor in determining the costs issue, a proposition which counsel accepted on the appeal. e) The effect of the Master's adjustment of the parties' interests was that the appellant's share of the property was valued at approximately $220,000, the respondent's at approximately $520,000. As is apparent from a comparison of the Master's orders and the pleadings, each party was unsuccessful in that he or she failed to obtain the adjustment that he or she sought, though each was successful in exceeding the adjustment that the other party offered. These were material considerations which were not taken into account by the Master.' 30 Subsequently, in Chanter v Catts (No 2) [2006] NSWCA 179, Hodgson JA, with the concurrence of Bryson JA and Hunt AJA, said that Vollmer did not tell against the award of costs to a plaintiff on the basis of 'substantial success', where the plaintiff, on appeal, obtained a result which bettered the defendant's offer by $60,000. Hodgson JA said (at [6]):- 'In my opinion, although the proceedings achieved less than the appellant claimed, the result is substantially better than the appellant could have obtained without court proceedings and counts as substantial success. I do not think that Vollmer counts against costs being awarded on the basis of that substantial success.' 31 For this purpose, 'substantial success' is not to be judged merely by the circumstance that a plaintiff obtains an adjustment in his or her favour. It involves an evaluation of the outcome, in the light of the forensic and negotiating positions of the parties, such that it can be said that one party has been clearly more successful than the other, to the extent that the costs of the proceedings can be seen to be attributable to the unsuccessful party's opposition, rather than to the matters referred to by Hislop J in Vollmer - including, in particular, the necessity for both parties that their property interests be separated, and the failure of both parties to adopt a realistic position. … 33 The third consideration is whether any party has been wholly or substantially (in the sense already described) successful (in obtaining the order sought), or has 'bettered' an offer of compromise." 34 Brereton J added (at [35]) that his "starting position" proposition was reinforced by his first consideration, namely the quantum of the adjustive order (see [26]), particularly when it was within the Local Court's jurisdiction. 35 It is plain, in my view, that the principal basis of Brereton J's "starting position" proposition was the analogy he drew between such proceedings and matrimonial proceedings and, in particular, the costs provision which applies in such proceedings, s 117 of the Family Law Act. His Honour drew that analogy even though there is no provision comparable to s 117 in the Act and, as he explained (at [27]), the Law Reform Commission Report which presaged the introduction of the predecessor of the Act, although drawing extensively on the Family Law Act, left the issue of costs to be determined by the existing court rules. 36 I note, with respect, that although Brereton J referred (at [13]) to counsel for the appellant's submission that "the starting point is that costs ought to follow the event", his Honour did not thereafter refer to UCPR 42.1. This is possibly because the rules prima facie limited the respondent's costs, he having recovered less than an award in proceedings under the Act the jurisdictional limit of the Local Court. In such circumstances the relevant rule provided that he was not entitled to his costs unless the Court otherwise ordered. 37 However once the Court stepped outside the rule applicable to costs where the adjustive order did not exceed the Local Court's jurisdiction, the general rule in UCPR 42.1 was a relevant consideration. Significantly, it was not open to his Honour to engraft onto the discretion conferred by s 98 and UCPR 42.1 a condition moulded on s 117 and drawn from another jurisdiction. This is especially so, in my view, where this State has not seen fit to adopt a provision like s 117 to deal with applications under the Act, notwithstanding the co-existence for more than two decades of what I accept are similar jurisdictions in relation to the adjustment of property interests between those in personal relationships. 38 Oshlack makes it clear that it is open to courts to develop principles to guide the exercise of a discretion such as s 98. It is another thing to enunciate a principle in terms which confine the discretion. Such an approach would constitute a return to the "arterial hardening" abandoned with the enactment of costs provisions such as s 98: see Oshlack (at [38]). The "starting point" proposition was, in my view, an attempt to graft onto s 98 and UCPR 42.1 a principle which would impermissibly confine the discretion those provisions confer. 39 Brereton J ultimately disposed (at [41]) of the issue of the costs of the trial on the basis that the overall justice of the case did not warrant departure from the starting position prescribed by the former SCR Pt 52A r 34(c) and DCR Pt 51D r 1 (see now UCPR 42.30). Accordingly, his Honour's remarks purporting to lay down a "starting position" for the costs of proceedings under the Act were dicta. I reject, therefore, the appellant's submission that Kardos v Sarbutt (No 2) creates a binding principle determinative of the respondent's costs application. 40 In my view, this Court should approach the question of the costs of the trial on the basis of the general discretion established by s 98 and UCPR 42.1. Prima facie, costs should follow the event. On that basis, the respondent having been successful at trial is entitled to her costs. I cannot see any basis upon which she should be entitled only to a percentage of the costs. In the latter respect, I note that Mr Brzostowski did not identify any basis upon which the Court could determine what percentage it might award the respondent, if it was minded to make such an order. 41 The considerations Brereton J identified, if applied on a rule of thumb basis (see Von Zonneveld v Seaton [2005] NSWSC 175 at [14]-[15] per Campbell J), also lead to this conclusion. The size of the adjustive order in the respondent's favour was large, falling just short of the District Court's jurisdiction under the Act and the respondent was substantially successful, bettering her own offers, desultory as they were. 42 Mr Maurice only sought the costs of the trial from August 2004. As I have earlier noted, I do not understand why he selected that period in relation to the ordinary costs. Having done so, however, that is the date from which the order should operate.

Indemnity Costs 43 The general rule is that costs payable to a person under an order of the court or the rules are to be assessed on the "ordinary basis": UCPR 42.2. 44 A court should only depart from the general rule and award indemnity costs where the conduct of the party against whom the order is sought is "plainly unreasonable": Sydney City Council v Geftlick and Ors [2006] NSWCA 280 at [90] per Tobias JA, Mason P and Hodgson JA agreeing. Indemnity costs orders should be reserved for the most unreasonable actions by unsuccessful plaintiffs: Leichhardt Municipal Council v Green [2004] NSWCA 341 per Santow JA (at [57]).

45 In seeking indemnity costs Mr Maurice relied on the disparity between the orders sought by the appellant compared with the final outcome of the proceedings and, too, on the offers the respondent made.

46 I will deal with the latter first. There are two well-recognised routes by which a litigant may establish a prima facie entitlement to indemnity costs. The first is by equalling or bettering an offer of compromise made in accordance with Rules of Court. The second is by writing a letter in the form approved by Cairns LJ in Calderbank v Calderbank [1976] Fam 93 (at 106) as sufficient to attract costs awarded on the same basis as if formal offer of compromise procedures had been invoked. Such a letter is conventionally headed "without prejudice save as to costs" and the recipient is warned that at an appropriate stage the letter may be tendered to attract an indemnity costs order: see Williamson v Mig Aero Pty Ltd (McLelland J, 15 March 1991, unreported); but also now s 131(2), Evidence Act 1995; Bruinsma v Menczer (1995) 40 NSWLR 716; Jones v Bradley (No 2) [2003] NSWCA 258 (at [5]); Leichhardt Municipal Council v Green per Santow JA (at [19]). 47 There is no evidence as to the form of the August offer. Mr Maurice did not state whether it was written or oral. If the former, he did not suggest it was made either in the form of an Offer of Compromise under the relevant rules, nor did he suggest it complied sufficiently, or at all, with the form of a Calderbank letter. The August 2004 letter does not, therefore, support making an indemnity costs order. 48 As to the 2006 offer, I note that where a defendant makes an Offer of Compromise under UCPR 20.26, which is not accepted by the plaintiff, and the defendant obtains an order or judgment on the claim concerned as favourable to the defendant, or more favourable to the defendant, than the terms of the offer, the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, assessed on an indemnity basis: UCPR 42.15A. The date from which the indemnity costs order operates turns on the time the Offer of Compromise was made: UCPR 42.15A(2)(b). To be an offer under UCPR 20.26, the offer must bear a statement to the effect that the offer is made in accordance with the rules: UCPR 20.26(3)(a). The 2006 offer did not bear any such statement and, therefore, UCPR 42.15A cannot apply. 49 However even if I assumed the 2006 offer could be characterised as sufficiently akin to a Calderbank letter to attract consideration for an indemnity costs order, I would not award indemnity costs on the basis of this offer. It was made on the day of the hearing, and was open only for a number of hours. The brevity of the period for which it was expressed to be open for acceptance brings to mind Ghunaim v Bart (No 2). In that case, a Calderbank letter was given to the plaintiff on the day of trial. The offer was open to be accepted for two or three hours. I said (with the agreement of Giles and Ipp JJA): "[28] More significant is the fact that the offer was only open for acceptance for a few hours, a period so brief it might be regarded as derisory - particularly having regard to the period for acceptance of offers of compromise mandated by the District Court Rules. In MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (1996) 70 FCR 236 at 240, Lindgren J described a Calderbank letter which contained only a minimal element of compromise and was open for acceptance for only one day as an "extreme case". The present Calderbank offer lies at an even greater extreme. A party should not be rewarded by an indemnity costs order in such circumstances." 50 The Court's jurisdiction to award costs on an indemnity basis is not, however, confined by the making of an offer of compromise conforming with the Rules or a Calderbank offer. Such an order may also be made where a party has refused a reasonable offer of settlement. Whether or not it was reasonable for a party to reject an offer of settlement will rarely however be determined by a bald comparison between the offers made and the outcome. Rather, the question whether a party's attitude to settlement offers have been so unreasonable as to warrant an indemnity costs order requires careful analysis of the issues in the proceedings and the state of the evidence at the time the various offers were made: Rolls Royce Industrial Power (Pacific) Ltd (Formerly John Thompson (Australia) Pty Limited) v James Hardie & Co Pty Ltd (Pacific) Limited [2001] NSWCA 461; (2001) 53 NSWLR 626. That is why, prima facie, the trial judge is in the best position to make an initial assessment of this issue, a matter to which I shall return. 51 Mr Maurice did not attempt any analysis of the issues in the case with a view to demonstrating that the appellant's rejection of the respondent's desultory offers was so unreasonable as to warrant the Court departing from the rule that an award of costs is assessed on the ordinary basis. 52 A brief perusal of the primary judgment indicates that although the central issue revolved around the manner in which the respondent could obtain the appellant's half interest in the Ainslie property, that issue was set against a complex financial relationship. The appellant owned a variety of properties during the parties' relationship, some of which the parties had occupied at various stages, and others which the appellant had improved in the course of the relationship. There were issues about the extent to which the appellant had made financial contributions to the benefit of the respondent which should be taken into account and, conversely, the extent to which the appellant had benefited from being accommodated in the Ainslie property prior to his acquisition of a half interest in it. The appellant had done a considerable amount of building work on the Ainslie property after he acquired his half interest in it, as well as taking over responsibility for the respondent's mortgage on that property. The respondent had also raised an issue concerning the quality of the building work he had undertaken and had sought recompense in respect of what she claimed was defective building work. It was her success in this respect which was included in the lump sum payment awarded to her. 53 It is by no means plain having regard to this analysis that the appellant acted unreasonably in rejecting the respondent's offers. Rather there were a number of factual issues which had to be resolved. In my view it is not appropriate to order him to pay the respondent's costs on an indemnity basis. 54 Before concluding this judgment I should say that the course the parties agreed of leaving the issue of the costs of the trial for consideration by this Court was inappropriate. As I have said it appears the parties adopted this course without recourse to the primary judge. A primary judge should always rule on the costs of the trial, including any application for indemnity costs. That judge is in the best position to determine the issues relevant to such orders, including the conduct of the trial, the reasonableness of the parties litigating particular issues and the reasonableness of a party's rejection of offers having regard to the necessity, in determining whether an indemnity costs order should be made, to consider the circumstances at the time the offer was made. This Court is entitled to have the benefit of the primary judge's view on costs.

Order 55 I propose that the appellant be ordered to pay the respondent's costs of the trial from August 2004. **********

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