Dunstan v Rickwood (No 2)

[2007] NSWCA 266

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › De facto relationship property adjustment proceedings
4. › Whether 'starting position' that each party bear own costs
5. › Whether discretion under s 98 Civil Procedure Act 2005 can be confined by analogy with Family Law Act 1975 (Cth) s 117
6. › Costs follow the event
7. › Civil Procedure Act 2005 (NSW), s 98
8. › Uniform Civil Procedure Rules 2005 (NSW), r 42.1
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Offers of settlement
5. › Whether offers constituted Calderbank letters or offers of compromise under rules
6. › Whether rejection of offers unreasonable
7. › Offer made on day of trial open for limited hours
8. › Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15A
1. Practice and Procedure
2. › Costs
3. › Costs of trial
4. › Appropriate forum for determination
5. › Whether costs of trial should be determined by trial judge or appellate court

Quick Take

In de facto property adjustment proceedings under the Property (Relationships) Act 1984 (NSW), the general rule that costs follow the event under s 98 of the Civil Procedure Act 2005 and UCPR 42.1 applies. There is no 'starting position' that each party should bear its own costs by analogy with s 117 of the Family Law Act 1975 (Cth). The 'starting position' proposition in Kardos v Sarbutt (No 2) was obiter and does not bind. A Calderbank-style offer made on the day of hearing and open for only a few hours is insufficient to ground an indemnity costs order.