Thynne v Jevny Pty Limited (No 4)

1. [1]

   I delivered judgment in these proceedings on 28 August 2025: Thynne v Jevny Pty Limited (No 3) [2025] NSWSC 986 (principal judgment, or P). These are my reasons in relation to the question of costs. I will adopt the same definitions as used in the principal judgment.

2. [2]

   The principal judgment resolved three broad areas of dispute. The first concerned the nature, if any, of Harry’s interest in the Mona Road property (the Mona Road issue). The second concerned some artworks which were bequeathed to Harry but subject to Victoria’s right to retain and use them during her lifetime (the Artworks issue). The third area of dispute involved a number of questions concerning the trust deed and administration of the Trust. The various issues for determination in relation to the Trust were summarised at subparagraphs (3)-(6) of P[72] (the Trust issues).

3. [3]

   Harry was altogether unsuccessful in relation to the Mona Road issue and the Artworks issue. In relation to the Trust issues, Harry had some limited success. His main claim on the Trust issues was for the removal of Jevny as trustee, in respect of which he was unsuccessful. Meanwhile, Jevny and Victoria were largely successful in their cross-claim on the Trust issues.

4. [4]

   It is however important to recognise that Harry was justified in commencing the proceedings at the time he did: see P[225]. It is also important to recognise that Harry was successful in demonstrating that the terms of the Trust had not been amended in such a way as to make either Victoria or Elanora Farming ‘Beneficiaries’ within the meaning of the Recording Deed. This latter issue was an important aspect of his case. Evidence and submissions on this issue took up a reasonably significant amount of time at the hearing.

5. [5]

   Harry submits that it is in these circumstances appropriate for his costs in relation to the Trust issues to be paid out of the Trust fund. In the alternative, Harry submits that the parties should each pay their own costs in relation to the Trust issues. Harry makes no submission as to costs in respect of the other issues. Presumably, he accepts that in relation to those issues, costs should simply follow the event.

6. [6]

   Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) provides as follows:

7. [7]

   The ‘event’ referred to in the legislation generally refers to the ‘practical result’ of the proceedings as a whole: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15] (Ward, Emmett and Gleeson JJA).

8. [8]

   As to his primary position, Harry refers to Re Buckton [1907] 2 Ch 406. At 414-415 of this case, Kekewich J said:

9. [9]

   Harry particularly relies on the second of these paragraphs. However, I do not consider that this paragraph has any useful application to this case. Harry did initiate proceedings, as he was entitled to do, but the relief ultimately granted largely reflects what the trustee itself sought by way of cross-claim.

10. [10]

    Nor do I consider it appropriate to make an order that each party pay their own costs concerning the Trust issue. That is for two reasons. First, it is ordinarily undesirable to make costs orders on an issue-by-issue basis: eg Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53; (2015) 90 ALJR 270 at [6]. It is usually only appropriate to deprive a successful party of its costs on an issue where the issue or group of issues was ‘clearly dominant or separable’: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]. The Trust issues were dominant in the sense of occupying much of the Court time at final hearing, but I do not consider that they were so separable from the other issues in the case in a way that would justify a costs order on an issue-by-issue basis.

11. [11]

    Secondly, even if it were appropriate to order costs on an issue-by-issue basis, I would not consider that the parties have had an even measure of success on the Trust issues such that it would be appropriate for there to be no order in relation to the costs of those issues.

12. [12]

    In my view, this is a case in which it is appropriate for the costs order to be made on a global basis, but in a way that recognises Harry’s success on some of the Trust issues. As mentioned, the issues on which he succeeded were significant, albeit that that success did not entitle him to the final relief he sought.

13. [13]

    In the circumstances, I consider that the appropriate order is that Harry should pay 75% of the defendants’ costs of the proceedings.

14. [14]

    Harry also sought an order that the costs order be stayed ‘until the expiration of the date for the filing on an appeal or the determination of any appeal filed’. He did not however make any meaningful submission as to why such a stay should be granted.

15. [15]

    The principles governing a stay of costs orders reflect the ordinary principles concerning the stay of a judgment pending appeal: The Owners Strata Plan Number 57164 v Yau [2017] NSWCA 176 at [10]-[11] (Simpson JA). Those ordinary principles were summarised by Gleeson JA in Lawrence v Gunner [2015] NSWCA 322 at [11]-[13].

16. [16]

    These principles do not support a stay of the costs order. At this point, no appeal has been commenced. Nor is there any evidence (or even a submission) that Harry will be hampered in his pursuit of an appeal unless a stay is granted. Further, I have no basis to conclude that Harry runs a risk of being unable to recover costs from Victoria or Jevny, should he be successful on appeal. I note that both Victoria and Jevny own valuable realty.

17. [17]

    In these circumstances, I do not consider it appropriate to stay my costs order.

ORDERS

1. [18]

   The order will therefore be as follows:

   1. (1)

      The plaintiff/cross-defendant is to pay 75% of the defendants’/cross-claimants’ costs of the proceedings.