Flett v Brough [1999] NSWSC 18 (2 February 1999)

Last Updated: 7 April 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Flett v Brough [1999] NSWSC 18

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 2638/97

HEARING DATE{S): 2 February 1999

JUDGMENT DATE: 02/02/1999

PARTIES:

Barbara Anne Flett (P)

Jeremy James Brough (D)

JUDGMENT OF: Master McLaughlin

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr. M. Errington (D)

SOLICITORS:

Mr. J. Dawson (P)

CATCHWORDS:

Argument as to costs

ACTS CITED:

Child Support Assessment Act 1989

De Facto Relationships Act 1984

DECISION:

JUDGMENT:

- 3 -

SUPREME COURT OF

NEW SOUTH WALES

EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 2 February 1999

2638 of 1997 FLETT -v- BROUGH

1 MASTER: Concerning the matter of costs, I consider that the costs to which the plaintiff should be entitled would be the general costs of the proceedings discounted by a proportion reflecting the purported application of the plaintiff under the Child Support Assessment Act, 1989.

2 In a judgment delivered by me on the first day of the hearing, 19 August 1998, I ultimately held that that purported application made by the plaintiff on 11 August 1998 was not an application and was not properly before the Court. It was not subject to and could not be subject to any orders and directions. Accordingly it was not then and is not now open to me to make any order for costs in favour of the defendant and against the plaintiff in respect to that purported application. Nevertheless, several hours of the first day of the hearing were taken up with legal argument concerning whether that application was properly before the Court.

3 However until I delivered my judgment at the conclusion of the submissions concerning that purported application it was necessary for the defendant in its preparation of the present proceedings to be alert to the fact that the plaintiff was purporting to make such an application and to be prepared to resist such an application. Since the plaintiff was substantially successful in her claim under the De Facto Relationships Act, had the proceedings consisted only of that claim, she would have been entitled to the entirety of the costs. Nevertheless, on account of the purported application to which I have referred, the costs of the plaintiff should in my view be discounted.

4 I have reached the conclusion that the plaintiff is entitled to receive from the defendant three-quarters of her costs of the proceedings. Accordingly I have emended order 7 in the short minutes of orders which have been prepared by the plaintiff now to read as follows:

5 That the defendant pay three-quarters of the plaintiff's costs of and incidental to these proceedings in a sum to be agreed between the parties or, failing agreement, as assessed.

6 I make the following orders:

1. I make orders as in paragraphs 1 to 7 in the short minutes of order initialled by me and filed in Court this day.

2. I note paragraph 8 in the short minutes.

I certify that this and the preceding

pages are a true copy of the reasons for

judgment of Master McLaughlin

Dated: 2 February 1999

Associate

Mark A. Provera

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LAST UPDATED: 31/03/1999