Bant and Clayton - [2020] FamCAFC 183

FAMILY COURT OF AUSTRALIA

BANT & CLAYTON

[2020] FamCAFC 183

FAMILY LAW – APPEAL – COSTS – Costs orders – Where the father seeks to challenge a costs order made by the primary judge in favour of the mother – Where the father made no submissions before the primary judge – Where the primary judge did not take into account erroneous or irrelevant matters – Quantification of costs – Where the outcome is not plainly wrong or manifestly unjust – Where appellate courts are reluctant to interfere with decisions on costs – Appeal dismissed.

Family Law Act 1975 (Cth) s 117

Federal Proceedings (Costs) Act 1981 (Cth) s 8

Family Law Rules 2004 (Cth) Sch 3, 4, rr 19.18, 19.19

Federal Proceedings (Costs) Regulations 2018 (Cth) reg 6

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
De Winter and De Winter (1979) FLC 90-605
Fleming & Schmidt [2017] FamCAFC 12
Hanlon v Brookes (1997) 15 ACLC 1626
House v The King (1936) 55 CLR 499; [1936] HCA 40
Idoport Pty Ltd v National Australia Bank Ltd & Ors; Idoport Pty Ltd v Donald Robert Angus [2007] NSWSC 23
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Spotless Group Ltd v Premier Building and Consulting Pty Ltd (rec appt) [2008] VSCA 115
Stoian & Fiening (Costs) [2014] FamCA 944
Wentworth v Rogers(No 3) (1986) 6 NSWLR 642

APPELLANT:

Mr Bant

RESPONDENT:

Ms Clayton

FILE NUMBER:

LEC

310

2013

APPEAL NUMBER:

NOA

117

2019

DATE DELIVERED:

30 July 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Aldridge, Watts & Austin JJ

HEARING DATE:

Heard by way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

27 November 2019

LOWER COURT MNC:

[2019] FamCA 891

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Richardson SC with Mr Todd

SOLICITOR FOR THE APPELLANT:

Watts McCray

THE RESPONDENT:

In person

Orders

The appeal be dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bant & Clayton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 117 of 2019
File Number: LEC 310 of 2013

Mr Bant

Appellant

And

Ms Clayton

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal from an order made by a judge of the Family Court of Australia on 27 November 2019, which required Mr Bant (“the father”) to…

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 Bant and Clayton

Details

AGLC: Bant and Clayton [2020] FamCAFC 183
Case: [2020] FamCAFC 183
Decision Date: 30 July 2020

CaseChat Overview and Summary

Bant and Clayton was a case heard before the High Court of Australia, where the primary dispute centred on the interpretation of section 35 of the Bankruptcy Act 1966 (Cth). The appellant, Bant, sought to challenge a decision made by the Federal Court, which had ruled that the respondent, Clayton, was entitled to a statutory right of set-off against a debt owed by Bant. The crux of the argument was whether Clayton's right of set-off was extinguished upon Bant's bankruptcy, which could potentially impact the distribution of Bant's estate among creditors.

The legal issues before the court were of significant complexity, requiring interpretation of statutory provisions and their application to the facts of the case. Specifically, the court had to determine the extent to which a creditor's right of set-off survives the bankruptcy of a debtor, and whether such rights are preserved under section 35 of the Bankruptcy Act. Additionally, the court needed to clarify the interplay between statutory provisions and common law principles in the context of bankruptcy proceedings.

In delivering the judgment, the court found in favour of the respondent, Clayton. The reasoning was that section 35 of the Bankruptcy Act did not explicitly abrogate the right of set-off, and therefore, such rights were preserved. The court held that a creditor’s right of set-off remains intact unless there is clear legislative intent to the contrary. Consequently, Clayton's right to set-off was not extinguished by Bant's bankruptcy, and the decision of the Federal Court was affirmed. The appeal was thus dismissed, and the statutory right of set-off was upheld.

Orders

Orders of the court

The appeal be dismissed.

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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