Deves v Porter

HIS HONOUR : I gave judgment in this matter on 1 August 2003: Deves v Porter [2003] NSWSC 625. In that judgment I decided that the plaintiff was entitled to the sum of $20,800. That sum was one to which she was entitled on two separate bases. The first was under the Property (Relationships) Act 1984 . The second was on the basis of a constructive trust.

Today the matter is before me for argument on costs. There has been tendered today evidence of the plaintiff making a variety of offers of compromise. On 15 April 2002 the plaintiff offered to settle for $20,000 exclusive of costs. She made offers of various smaller amounts after that.

Under Pt 52A r 34 in the ordinary course costs are not able to be awarded unless the amount recovered is more than $40,000. That amount is the limit of jurisdiction of the Local Court. Miss Cohen, for the plaintiff, submits that it would not have been possible for this claim to have been brought in the Local Court and nor could it have been brought in both its aspects in the District Court, because the District Court did not have jurisdiction to grant the constructive trust claim. Even though it is unusual for a claim for a constructive trust to result in a larger award than is made under the Property (Relationships) Act , arising from the same factual circumstances, Miss Cohen points out that in this case the plaintiff could succeed under the Property (Relationships) Act only if she succeeded in obtaining an order for extension of time. Because there was room for argument about whether the plaintiff would obtain the order for extension of time, prudence required her to begin proceedings in this Court, and to rely on the constructive trust as a fall-back position. That, she submits, justifies the Court making a costs order despite Pt 52A r 34. It seems to me that those submissions are correct.

The plaintiff seeks not only costs, but indemnity costs from 15 April 2002. The usual situation, when an offer of compromise is made, and the person who makes the offer of compromise ultimately achieves a better result in the proceedings than he or she had offered to accept, is that that person is entitled to indemnity costs from a reasonable time after service of the offer of compromise. That is something which is always subject to the Court ordering otherwise.

In the present case, the award which was achieved was a comparatively small one. It was much less than the plaintiff asked for in submissions. It is a useful rule of thumb in proceedings of this kind, that the costs awarded ought not exceed the amount recovered.

In my view, the plaintiff is entitled to a costs order, but I will limit it so that it does not result in the recovery of more than the amount which was awarded.

Because there is this cap on the amount of the costs which will be recoverable, I do not think there is any point in making an order for indemnity costs for part of the period.

I order the first defendant to pay the costs of the plaintiff of the proceedings, but that the amount recoverable as such costs shall, in no circumstances, exceed $20,800.

Application was made for an award of interest on the sum granted. In light of the fact that I gave the plaintiff the benefit of a fractional interest in the property, rather than a charge for the amount which she could show she had contributed, it seems to me that it is not appropriate for interest to be awarded. I decline to make any order for interest.