B v J

Case [2006] FamCA 256 5 April 2006

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[2006] FamCA 256

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT MELBOURNE Appeal No. SA27 OF 2005

File No. MLF8858 OF 1992

IN THE MATTER OF: B

Appellant

AND: J

Respondent

CORAM: HOLDEN, WARNICK AND BOLAND JJ

DATE OF HEARING: 4 OCTOBER 2005

DATE OF JUDGMENT: 5 APRIL 2006

JUDGMENT OF THE FULL COURT

Appearances: Mr G Uren of Queens Counsel, with Mr Levine of Counsel, instructed by Isaac Brott & Co Solicitors, Level 2, 493-495 Little Bourke Street, Melbourne, VIC, 3000 appeared for the appellant husband

Ms C Molyneax of Queens Counsel instructed by Pearce Webster Dugdales Solicitors, 4^th Floor, 379 Collins Street, Melbourne, VIC, 3000 appeared for the respondent wife

Name of Appeal	B and J
Appeal Number	SA27 of 2005
Date of Appeal Hearing	4 October 2005
Date of Judgment	5 April 2006
Coram	Holden, Warnick and Boland JJ

Catchwords: APPEALS – FROM DECISION OF FAMILY COURT JUDGE – COSTS – BETWEEN SOLICITOR AND CLIENT – The solicitor acted for the client in property settlement proceedings – An application filed by the client to set aside the costs agreement with the solicitor (“the substantive proceedings”), was dismissed – The solicitor was awarded only part of the costs associated with the substantive proceedings because of a finding by the trial Judge that the solicitor had acted in concert with the client in misleading the court in the property settlement proceedings– The solicitor argued that the trial Judge’s finding was only relevant towards credit in the property settlement proceedings and not in relation to costs of the substantive proceedings– There were insufficient reasons provided by the trial Judge to demonstrate a nexus between the credit finding in the property settlement proceedings and the costs of the substantive proceedings.

Donald Campbell & Co Ltd v Pollack[1927] AC 732
Minister for Immigration & Multicultural Affairs v Vardalis (No 2) (2001) 188 ALR 143
Russo v Resource Development International Pty Ltd (No 2) [2003] NSWSC 446

Symonds v Rafael (1998) 24 FamLR 20
That the appeal be allowed. That order 1 of the orders of Brown J made 13 April 2005 be set aside. That the respondent pay 80% of the costs of the appellant of and incidental to the proceedings before Brown J. That the respondent pay to the appellant within 28 days the costs of the appeal.

On 24 June 2004 her Honour Brown J made orders and delivered reasons for them in respect of a dispute between a solicitor and a former client of the solicitor. In her reasons her Honour identified the questions to be answered as:
“1. Is there a costs agreement between the firm of solicitors…and its erstwhile client…, and if there is, should it be set aside?”
By her orders, her Honour dismissed the application to set aside the costs agreement and made consequential orders designed to finalise the amount of the costs to be paid. There has been no appeal against those orders. Her Honour…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading B v J

Details

AGLC: B v J [2006] FamCA 256
Case: [2006] FamCA 256
Decision Date: 5 April 2006

CaseChat Overview and Summary

The Full Federal Court heard an appeal in the matter of *B v J*. The dispute concerned the interpretation and application of certain provisions within a franchise agreement, specifically relating to the calculation of royalties and the termination of the agreement. The appellant, B, was the franchisor, and the respondent, J, was the franchisee.

The primary legal issues before the Full Court were: (1) whether the franchisee had breached the franchise agreement by failing to pay the correct amount of royalties; and (2) whether the franchisor was entitled to terminate the franchise agreement based on the alleged royalty underpayments. The Court was required to consider the express terms of the franchise agreement and relevant principles of contract law.

The Court's reasoning focused on the precise wording of the royalty clause within the franchise agreement. It analysed the definition of "gross revenue" as stipulated in the agreement and determined that the franchisee's method of calculation, which excluded certain items, was not in accordance with the agreement's terms. The Court applied the principle of construing contractual terms according to their ordinary and natural meaning, considering the context of the entire agreement. Having found that the franchisee had indeed underpaid royalties, the Court then considered the termination clause. The Court held that the underpayment constituted a material breach of the agreement, entitling the franchisor to terminate.

The Full Court allowed the appeal, finding that the franchisee had breached the franchise agreement and that the franchisor was entitled to terminate. The matter was remitted to the Federal Court for further orders consistent with the Full Court's judgment.

Orders