SIRTES v PRYER [2006] NSWSC 438

New South Wales Supreme Court

CITATION : SIRTES v PRYER [2006] NSWSC 438

HEARING DATE(S) : 08/11/05

JUDGMENT DATE : 15 May 2006

JURISDICTION : Equity Division

JUDGMENT OF : Burchett AJ at 1

DECISION : See para 12.

CATCHWORDS : COSTS - circumstances justifying an order for indemnity costs

LEGISLATION CITED : Civil Procedure Act 2005, s 98 Uniform Civil Procedure Rules 2005, Part 42

Harrison v Schipp [2001] NSWCA 13 Muriti v Prendergast [2006] NSWSC 286 CASES CITED : Oshlack v Richmond River Council (1998) 193 CLR 72 Rosniak v Government Insurance Office (1997) 41 NSWLR 608 Sirtes v Pryer [2005] NSWSC 1082

PARTIES : Paula SIRTES v Kim Jacqueline PRYER and Gregory Andrew SIRTES; Kim Jacqueline PRYER v Paula SIRTES

FILE NUMBER(S) : SC (1394/05)

Plaintiff/Cross Defendant: Mr J Simpkins SC and Mr D Meltz COUNSEL : First Defendant/Cross Claimant: Mr M B Evans. Submitting appearance only of Second Defendant.

SOLICITORS : Plaintiff/Cross Defendant: Broun Abrahams Burreket First Defendant/Cross Claimant: Swaab Attorneys

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BURCHETT AJ

15 May 2006

(01394/05) Paula SIRTES v Kim Jacqueline PRYER and Gregory Andrew SIRTES; Kim Jacqueline PRYER v Paula SIRTES

JUDGMENT

1 HIS HONOUR: The question for decision arises out of proceedings which were the subject of reasons for judgment delivered on 25 October 2005, pursuant to which a declaration and an order were made to provide for the setting aside of a transfer by the plaintiff to the first defendant of a one quarter share as tenant in common in a property known as 60-62 Balfour Road, Rose Bay and for the vesting of the said share in the plaintiff subject to a declaration that the plaintiff would hold it subject to an equitable charge in the sum of $775,000 in favour of the first and second defendants jointly. It remains to be determined what order should be made in respect of the costs of the proceedings and whether any order should be made on an indemnity basis. The plaintiff seeks an order for indemnity costs, contending that the first defendant, by disputing the basis for the claim, and by bringing a cross claim grounded upon an alleged entitlement to a one quarter share of the property, had acted unreasonably and maintained a legal position which was hopeless of success, with the result that the costs of the proceedings were magnified. The plaintiff also referred to settlement negotiations as indicating that she had been prepared to settle upon a footing more favourable to the first defendant than the ultimate decision of the court, and claimed she had made a firm offer to do so which had been rejected.