Ross v Ross (No 2) [2011] NSWCA 22 (23 February 2011)

Last Updated: 30 March 2011

Court of Appeal New South Wales

Case Title:	Ross v Ross (No 2)
Medium Neutral Citation:	[2011] NSWCA 22
Hearing Date(s):	On the papers
Decision Date:	23 February 2011
Jurisdiction:
Before:	Campbell JA [1]; Macfarlan JA [1]; Sackville AJA [1]
Decision:	(1) Appeal allowed; (2) Set aside the orders made by Ward J on 31 August 2009; (3) Order the respondent to pay the appellant's costs of the appeal; (4) The respondent to have a certificate under the Suitors' Fund Act 1951, if qualified; (5) Remit the proceedings to Ward J, or such other judge or associate judge of the Equity Division as may be nominated by the Chief Judge of the Division, for: (a) the determination of such claims, if any, as may be made by either of the parties for an occupation fee, for an allowance in respect of improvements to the subject property, for contributions in respect of mortgage payments or for such other amounts as may be proper to take into account in formulating an order under s 66G Conveyancing Act 1919 in respect of the subject property or in giving directions for the disbursement of the proceeds of sale pursuant to such an order; (b) the making of an order under s 66G Conveyancing Act in respect of the subject property consistent with this Court's reasons for judgment of 12 November 2010; (c) the making of an order concerning the costs of the proceedings at first instance; and (d) the making of such consequential or incidental orders as the judge considers appropriate. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PROCEDURAL AND OTHER RULINGS - consequential orders - no issue of principle
Legislation Cited:	Conveyancing Act 1919
Cases Cited:
Texts Cited:
Category:	Consequential orders
Parties:	Susan Elizabeth Ross (Appellant) Peter John Ross (Respondent)
Representation
- Counsel:	Counsel: C M Simpson SC/M Fraser (Appellant) P Smart (Respondent)
- Solicitors:	Solicitors: Rosen Lawyers (Appellant) Richard Hughes & Co (Respondent)
File number(s):	2009/298309
Decision Under Appeal
- Court / Tribunal:	Supreme Court
- Before:	Ward J
- Date of Decision:	29 May 2009
- Citation:
- Court File Number(s)	SC 1441/1990
Publication Restriction:

Judgment

1. THE COURT: The Court delivered judgment on this appeal on 12 November 2010 ([2010] NSWCA 301). The orders that it made afforded to the parties the opportunity to reach agreement as to the making of the further orders necessary for the disposal of the proceedings and, failing agreement, to identify and make submissions as to the further orders for which they contended, including as to costs at first instance.
   
2. The parties were not able to reach agreement and the documents they lodged with the Court contended for widely different orders. It is apparent from those documents that there are claims for allowances and other aspects of the contemplated s 66G order, such as the identity of the trustee or trustees to be appointed, upon which this Court is unable to adjudicate. As a result it is necessary to remit the proceedings to the Equity Division for the making of the s 66G order.
   
3. The appellant sought an order for payment of her costs of the proceedings at first instance on an indemnity basis. She relied upon the making by her, and the refusal by the respondent, of a settlement offer but provided no evidence as to the content of that offer. For that reason, and because the appropriate order for costs at first instance may be influenced by the claims for allowances yet to be determined, the making of that order should be left to the Equity Division.
   
4. For these reasons the Court makes the following orders:
   
   • (1) Appeal allowed;
     
   • (2) Set aside the orders made by Ward J on 31 August 2009;
     
   • (3) Order the respondent to pay the appellant's costs of the appeal;
     
   • (4) The respondent to have a certificate under the Suitors' Fund Act 1951, if qualified;
     
   • (5) Remit the proceedings to Ward J, or such other judge or associate judge of the Equity Division as may be nominated by the Chief Judge of the Division, for:
     

(a) the determination of such claims, if any, as may be made by either of the parties for an occupation fee, for an allowance in respect of improvements to the subject property, for contributions in respect of mortgage payments or for such other amounts as may be proper to take into account in formulating an order under s 66G Conveyancing Act 1919 in respect of the subject property or in giving directions for the disbursement of the proceeds of sale pursuant to such an order;

(b) the making of an order under s 66G Conveyancing Act in respect of the subject property consistent with this Court's reasons for judgment of 12 November 2010;

(c) the making of an order concerning the costs of the proceedings at first instance; and

(d) the making of such consequential or incidental orders as the judge considers appropriate.

**********