Burton v Prior (No 2) [2019] NSWSC 1431

Supreme Court New South Wales

Medium Neutral Citation: Burton v Prior (No 2) [2019] NSWSC 1431 Hearing dates: On the papers: written submissions 30 August 2019, 30 September 2019, 16 October 2019 and 18 October 2019 Date of orders: 21 October 2019 Decision date: 21 October 2019 Jurisdiction: Equity Before: Kunc J Decision: Defendant to pay two-thirds of the plaintiff's costs of the proceedings Catchwords: COSTS — party/party – general rule that costs follow the event – application of the rule and discretion – each party enjoys a measure of success – no issue of principle Legislation Cited: Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Property (Relationships) Act 1984 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Burton v Prior [2019] NSWSC 518 Calderbank v Calderbank [1975] 3 All ER 333 Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 Category: Costs Parties: Marea Therese Burton (Plaintiff) John David Prior (Defendant) Representation: Counsel:

K J Young (Plaintiff) P Abdiel (Defendant)

Solicitors:

Stratos Lawyers Pty Ltd (Plaintiff) John de Mestre & Co Pty Ltd (Defendant) File Number(s): 2014/267512 Publication restriction: No

Judgment

Summary 1. I delivered the principal judgment in these proceedings on 8 May 2019: Burton v Prior [2019] NSWSC 518 (the "Principal Judgment"). This judgment determines the question of costs and must be read with the Principal Judgment. Defined terms in the Principal Judgment have the same meaning in these reasons. 2. I observed at the outset of the Principal Judgment that "almost everything … has been put in issue in the bitter dispute between" Marea and John. With the exception of having agreed that costs be resolved on the papers, this remains the case in relation to costs. Their submissions as what costs orders should be made are diametrically opposed. 3. Marea has been vindicated in these proceedings in that the Court has found, despite John's vigorous assertions to the contrary until the last day of the hearing, that Marea does have an interest in the Property, albeit 15.97% instead of the 50% for which she contended. She has obtained an order for the sale of the Property, which at least for some part of the history of these proceedings was also resisted by John. However, she has failed in what was, in effect if not name, a cross-claim, that if the Court was not satisfied she had a 50% interest in the Property, that interest should be awarded to her by an adjustment under the PRA (or on other bases which it is not necessary to repeat in detail). 4. Given the bitter and protracted litigious history between these parties and the difficulties that would inevitably arise on assessment, it would be completely undesirable for costs orders to be made in favour of both Marea and John which attempted to reflect their respective success in the proceedings. A just outcome is to treat Marea as the principal victor in the proceedings but to reduce the proportion of her costs for which John will be liable to reflect her failure to increase her interest in the Property beyond 15.97%. The Court is satisfied that the appropriate exercise of its discretion as to costs is to order John to pay two-thirds of Marea's costs of the proceedings. 5. As she has done throughout the proceedings, Ms K J Young of Counsel appeared for Marea. Ms P Abdiel of Counsel appeared for John on the question of costs.