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 | of | 2013 |
| APPEAL NUMBER: | NOA | 117 | of | 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…
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- AGLC
- Bant and Clayton [2020] FamCAFC 183
- Case
- [2020] FamCAFC 183
- Decision Date
CaseChat Overview and Summary
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
1.
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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