Tuesday, 2 June 2009

Danger of property mediation and agreements without legal advice: part 3- this game was not worth the candle

I have blogged recently about the Queensland case where the de facto wife stopped at nothing to prevent the de facto husband from claiming a legitimate portion of the property. The de facto wife even got the de facto husband signed up at mediation to agree to $5,000, when ultimately at trial he received $260,000.

The de facto wife was unhappy with the result, and unsuccessfully appealed.

Not surprisingly, the de facto husband sought costs of the appeal, on an indemnity basis. He sought to rely on previous offers made. Not much could be done with these, because:

In this regard much will depend on the price obtained for the house in
which the parties formerly lived...

(W)e consider that Ms DRH should be ordered to pay Mr SPD's costs of the
appeal. We take that view because the prosecution of the appeal was distinctly
unreasonable having regard to the absence of any substantial basis for
challenging the findings of the learned primary judge.
[4] We are confirmed in this view, notwithstanding s 341(2) of the Property
Law Act 1974
(Qld).][ That as a general rule each party bears their own
costs- similar to s.117 of the Family Law Act] This Court should be astute
to do what it can to minimise the expense to Mr SPD of an appeal which should
never have been brought having regard to both the absence of any ground for
complaint about the decision at first instance and the very modest sum in
dispute in the appeal. No-one could have reasonably been of the view that this
game was worth the candle.

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