New South Wales Supreme Court CITATION : Howland v Ellis [2000] NSWSC 4 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2621/97 HEARING DATE(S) : 15 December 1999 (written submissions) JUDGMENT DATE : 31 January 2000 PARTIES : John Howland (P & Cr-D) Lalla Carmella Ellis (D & Cr-Cl) JUDGMENT OF : Master McLaughlin COUNSEL : Mrs R. Winfield (P & Cr-D) Mr L. Ellison (D & Cr-Cl) SOLICITORS : Hovan & Co (P & Cr-D) Willis & Bowring (D & Cr-Cl) CATCHWORDS : Costs - Claim of plaintiff dismissed - Cross-claim filed by defendant - Claim of defendant for maintenance unsuccessful - Whether defendant is entitled to an order that the plaintiff pay the entirety of the defendant's costs, or whether defendant should pay part of plaintiff's costs - Evidence relating to maintenance also relevant to exercise of the Court's discretion in respect to application by plaintiff for extension of time. LEGISLATION CITED : De Facto Relationships Act 1984 DECISION : See Paragraph 15 - 4 - SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MASTER McLAUGHLIN 31 January 2000 2621/97 JOHN HOWLAND -v- LALLA CARMELLA ELLIS JUDGMENT 1 MASTER: Consequent upon leave in that regard reserved by me on 28 November 1999 the plaintiff, John Howland, has made application for a variation in the costs order proposed by me on that date, being an order that the plaintiff pay the costs of the defendant. 2 It is my understanding that, in substitution for such an order, the plaintiff seeks an order that the defendant pay the costs of the plaintiff in respect to the cross-claim filed by the defendant, and, subject thereto, that the plaintiff pay the costs of the defendant of the proceedings. 3 The basis upon which the plaintiff submits that such an order should be made is that the claim for relief sought by prayer 2 of the cross-claim was dismissed, and that both the affidavit of the defendant sworn on 18 May 1999, the cross-examination of the defendant upon that affidavit, and the additional oral evidence given by the defendant at the hearing were all directed to the claim for maintenance sought in prayer 2 of the cross-claim. 4 The defendant opposes the costs order now sought by the plaintiff, and submits that the appropriate costs order is that proposed in my judgment of 26 November 1999, being an order that the plaintiff pay the costs of the defendant. (The written submissions of Counsel for the respective parties will be retained with the Court papers.) 5 By her cross-claim the defendant sought three items of relief, being a declaration that she was the beneficial owner of the entirety of the house property at Miranda, an order for the removal of the caveat lodged by the plaintiff against that property, and an order, pursuant to section 27 (and the following sections) of the De Facto Relationships Act 1984, that the plaintiff pay maintenance for her and for their child Kahl. 6 In consequence of the conclusions which I reached concerning the claim of the plaintiff, I considered that the defendant was entitled to a declaration of the nature of that sought in prayer 1 of her cross-claim, and an order as sought in prayer 3 thereof, for the removal of the caveat lodged by the plaintiff. 7 However, for the reasons set forth in my judgment of 26 November 1999 I did not consider that the defendant had established an entitlement to an order for maintenance, as sought in prayer 2 in her cross-claim. That claim for maintenance was therefore dismissed. 8 The cross-claim was filed on 26 May 1999, about three weeks before the commencement of the hearing. There were no additional appearance occasioned as a result of the filing of that pleading. The plaintiff filed no evidence in response to that pleading or to the affidavit of the defendant sworn 18 May 1999. 9 Although that affidavit addressed itself primarily to the claim of the defendant for maintenance, it was not limited to that claim. 10 A significant part of the case related to the exercise of the Court's discretion, pursuant to section 18(2) of the De Facto Relationships Act, concerning the application by the plaintiff for an order extending the time for the commencement of the proceedings, and the consideration of whether greater hardship would be caused to the plaintiff if leave to make the application were not granted to him than would be caused to the defendant if that leave were granted. In that regard the personal circumstances of the defendant and her household, including the child of the parties, were relevant to this question of hardship and to the exercise of the discretion of the Court. 11 The affidavit of 18 May 1999 set forth information concerning the financial and material circumstances of the defendant, and was in my view relevant to the exercise of the discretion of the Court in relation to the application by the plaintiff for extension of time. 12 In the context of a hearing extending over four days, a relatively small part of the hearing was devoted to what may be regarded as evidence relating exclusively to the application by the defendant for maintenance. Most of that evidence was, as I have already indicated, relevant also to the application of the plaintiff for an extension of time. The period of the hearing occupied by the submissions of Counsel relating to the claim for maintenance was minimal. Although not expressly abandoned, the claim for maintenance was the subject of a submission by Counsel for the defendant that, if the statement of claim were to be dismissed, it might be appropriate for the cross-claim for maintenance also to be dismissed, since the Court would not make an order incapable of enforcement for the reasons set forth in my judgment (paragraph 83). I expressed my agreement with that submission. 13 I recognise that the defendant has been unsuccessful in the claim for maintenance made by her in the cross-claim. The realities of the hearing were, however, that no significant part of the evidence or of the submissions could be attributed exclusively to the unsuccessful claim of the defendant for maintenance. 14 In those circumstances, I have reached the conclusion that it is appropriate that the entirety of the costs of the proceedings should be paid by the plaintiff. 15 Accordingly, I confirm the orders, including the costs order, provisionally made by me on 26 November 1999. ********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.