Robson v Daley [2009] NSWSC 633

New South Wales Supreme Court

CITATION : Robson v Daley [2009] NSWSC 633

HEARING DATE(S) : 25 June 2009 JUDGMENT OF : Hammerschlag J

EX TEMPORE JUDGMENT DATE : 25 June 2009

DECISION : Each party to pay their own costs

CATCHWORDS : PROCEDURE - Costs – costs where proceedings settled – approach to be taken – whether there should be an order other than that each party pay their own costs on the grounds that one or the other acted unreasonably in bringing or resisting the proceedings respectively - held neither party had acted so unreasonably that there should be an order other than that each pay their own costs

Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 CASES CITED : Legal & General Life of Australia Limited v A Hudson Pty Limited (1985) 1 NSWLR 314 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

PARTIES : Malcolm Robson - Plaintiff Kelly Daley - Defendant

FILE NUMBER(S) : SC 3985/2007

COUNSEL : J.J. Hyde [Plaintiff] M.A.J. Daley [Defendant]

SOLICITORS : Smallwoods [Plaintiff] TK Legal [Defendant]

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

HAMMERSCHLAG J

25 JUNE 2009

3985/2007 MALCOLM ROBSON -V- KELLY DALEY EX TEMPORE JUDGMENT 1 HIS HONOUR: These proceedings have an unfortunate history and origin. They are between the plaintiff and his daughter. They commenced by the plaintiff seeking a declaration that 548 Freemans Drive, Cooranbong, New South Wales ("the property") (which he had transferred to the defendant) was beneficially held by her for him and on his behalf. 2 The proceedings were settled by Consent Orders made on 7 August 2008 by McDougall J, declaring that the property was held by the defendant on trust for the plaintiff beneficially and ordering her to execute documents to retransfer it to him. No order as to costs was made to the intent that each party was to pay their own. 3 At the time the proceedings were settled, the parties entered into an agreement in the following terms: "5. That the interest of the defendant created by this agreement, over the property referred to in Declaration 1, be secured by a charge over the property, and the defendant be entitled to lodge a Caveat to evidence such charge provided that such Caveat permits registration of a mortgage by the plaintiff securing a loan over the property for an amount no greater than fifty percent of the value of the property to be agreed or determined by an independent valuer. 6. (i) The plaintiff will pay the defendant an amount representing 22.5 percent of the market value of the property at any time prior to the expiration of three years from the date of these Orders. The value will be determined by agreement between the parties, but if no agreement is reached, then it will be determined by a registered valuer, experienced in valuing properties within the locality, and who is appointed by agreement between the parties. If no agreement is reached as to the valuer, then by a valuer nominated by the President of the Australian Property Institute Inc. upon the request of either party. Such payment will be made by the Plaintiff within two months of such valuation being determined. (ii) In the alternative, if the plaintiff does not pay the defendant in accordance with (i) above, then the property be sold within three years at a time of the plaintiff's choice upon such terms and conditions as determined by the plaintiff, and such sale to be on an arm's length and commercial basis. That the plaintiff will cause the defendant to be kept informed by the agent appointed by the plaintiff of the progress of such sale. 7.1 That the defendant is paid from the proceeds of sale, such proceeds will be paid and divided as follows:- (i) Up t o the sum of $20,000.00 (*indexed to CPI if costs incurred after one year) be reimbursed to the plaintiff for any costs incurred by him to carry out work to the property prior to sale, including refurbishing the kitchen, and laying new carpets, and other work nominated by the plaintiff. (ii) The payment of agent's commission and legal fees. (iii) The remaining proceeds will be divided as to 77.5 percent to the plaintiff, and 22.5 percent to the defendant. 7.2 That any borrowings secured by the plaintiff over the property will be paid from his share of the proceeds of sale. 8.1 That the plaintiff will pay any Land Tax assessed against the property." 4 On about 13 August 2008 the defendant lodged a caveat over the property in the following terms: "Equitable interest pursuant to orders made by the Supreme Court of NSW in matter number 3985/07 on 7 August 2008."