Bain & Bain (deceased) (Costs) - [2017] FamCAFC 164

FAMILY COURT OF AUSTRALIA

BAIN & BAIN (DECEASED) (COSTS)

[2017] FamCAFC 164

FAMILY LAW – APPEAL – COSTS – Costs of the proceedings at first instance – Where the appellant sought that the respondents pay his costs personally – Where the respondents were wholly unsuccessful – Consideration of whether costs should be paid from the estate – Where the costs of the litigation were not reasonably incurred – Where the estate is insolvent – Where the respondents did not seek judicial advice – Costs ordered against the respondents personally.

FAMILY LAW – APPEAL – COSTS – Costs of the appeal – Where appeal upheld by reason of errors of law – Costs certificates ordered.

FAMILY LAW – APPEAL – COSTS – Substitution of parties – Where the appellant is now bankrupt – Where the appellant’s Trustees in Bankruptcy have made an election to continue the application for costs – Whether the application for costs is property as defined in the Bankruptcy Act 1966 (Cth) – Where it is not necessary to determine the point conclusively – Trustees joined as parties in substitution of the appellant.

Bankruptcy Act 1966 (Cth) ss 5(1), 60, 58, 116
Family Law Act 1975 (Cth) ss 112AD, 112AP, 117
Federal Proceedings (Costs) Act 1981 (Cth)
Trustees Act 1973 (Qld) ss 72, 96

Bain & Bain (Deceased) (2017) FLC 93-722
Cummings v Claremont Petroleum NL (1996) 185 CLR 124
In re Beddoe; Downes v Cottam [1893] 1 Ch 547
In re Jones; Christmas v Jones [1897] 2 Ch 190
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66
May v O’Sullivan (1955) 92 CLR 654
National Trustees Executors and Agency Company of Australasia Ltd v Barnes (1941) 64 CLR 268
Nolan v Collie and Anor 2003 7 VR 287

J D Heydon and M J Leeming, Jacob’s Law of Trusts, (LexisNexis Australia, 7^th ed, 2006) [240]

APPELLANT:

Mr Graham and Mr Clark as Trustees for the Bankrupt Estate of Mr Bain

RESPONDENT:

Ms Little and Ms Searle, the Legal Personal Representatives for Ms Bain (deceased)

FILE NUMBER:

BRC

2481

2010

APPEAL NUMBER:

2016

DATE DELIVERED:

16 August 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

By written submissions in chambers

JUDGMENT OF:

Bryant CJ, Ainslie-Wallace and Rees JJ

HEARING DATE:

By written submissions filed 24 May 2017; 7 June 2017; 9 June 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

4 February 2016

31 March 2016
25 May 2016
9 August 2016

LOWER COURT MNC:

[2016] FamCA 42
[2016] FamCA 602
[2016] FamCA 600
[2016] FamCA 662

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Richardson SC

SOLICITOR FOR THE APPELLANT:

Hopgood Ganim Lawyers

SOLICITOR FOR THE RESPONDENT:

Blair Anderson Solicitor

Orders

That Mr Graham and Mr Clark be joined as parties to the proceedings in substitution for Mr Bain.
That, without recourse to the estate of the late Ms Bain, Ms Little…

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 Bain & Bain (deceased) (Costs)

Details

AGLC: Bain & Bain (deceased) (Costs) [2017] FamCAFC 164
Case: [2017] FamCAFC 164
Decision Date: 16 August 2017

CaseChat Overview and Summary

The appeal concerned a dispute arising from family law proceedings where the appellant, Bain, sought costs from the respondents, Little and Searle. The case was initially heard by Hogan J, who ordered Bain to pay his own costs. Bain appealed this decision, arguing the costs should have been paid by the respondents personally, not from the estate of the deceased, Ms Bain. The Court of Appeal considered whether the costs were reasonably incurred and if they should be paid from the estate given its insolvency. Additionally, the appeal involved the substitution of parties as Bain had become bankrupt, with his Trustees in Bankruptcy continuing the application for costs.

The legal issues before the Court of Appeal included whether the costs incurred by Bain were reasonable and should be paid from the estate, and if not, whether they should be paid personally by the respondents. The Court also had to determine if the application for costs was property as defined in the Bankruptcy Act 1966 (Cth), and if so, whether it was necessary to conclusively determine this point. Furthermore, the Court had to decide on the appropriate costs orders for both the original proceedings and the appeal, considering the appeal was upheld due to errors of law.

The Court of Appeal held that the costs Bain incurred were not reasonably incurred and should not be paid from Ms Bain's insolvent estate. Consequently, the respondents, Little and Searle, were ordered to pay Bain's costs personally. The Court found it unnecessary to conclusively determine if the application for costs was property under the Bankruptcy Act. The appeal against the orders of Hogan J was upheld, leading to the grant of costs certificates for both parties for the appeal. Finally, the Court ordered that Bain's Trustees in Bankruptcy be joined as parties in substitution for Bain, and that counsel's attendance was reasonably required.

The orders of the Court included joining Bain's Trustees in Bankruptcy as parties in place of Bain, directing Little and Searle to pay Bain's costs of the original proceedings from 31 March 2016 without recourse to Ms Bain's estate, and granting costs certificates for both parties in relation to the appeal. The Court also certified that the matter reasonably required the attendance of counsel, including Senior Counsel.

Orders

Orders of the court

That Mr Graham and Mr Clark be joined as parties to the proceedings in substitution for Mr Bain.

That, without recourse to the estate of the late Ms Bain, Ms Little and Ms Searle pay the appellant’s costs of and incidental to the proceedings before Hogan J as and from 31 March 2016.

That, in relation to the appeal against the orders of Hogan J made on 9 August 2016, there be no orders as to costs.

The court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

The court grants the respondents a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondents in respect of the costs incurred by the respondents in relation to the appeal.

Pursuant to r 19.50 of the Family Law Rules 2004 (Cth) the Court certifies that this matter reasonably required the attendance of counsel, including Senior Counsel.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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