Bartlett and Gibson (No. 3) - [2007] FamCA 1199

FAMILY COURT OF AUSTRALIA

BARTLETT & GIBSON (NO. 3)

[2007] FamCA 1199

FAMILY LAW – PROPERTY – COSTS – both the husband and the wife sought costs against the other party in their property proceedings – the husband was supported by an offer of settlement which was not close to the sum which the wife received at final hearing – each party to pay their own costs – the husband had unsuccessfully pursued the wife’s disposal of shares in her sister’s company – the wife should not have to pay the husband’s costs in relation to such unsuccessful litigation by the husband and the husband should pay her costs incurred in that part of the litigation

Family Law Act 1975 (Cth)

Pennisi & Pennisi (1997) FLC 92-774

APPLICANT:

Mr Bartlett

RESPONDENT:

Ms Gibson

FILE NUMBER:

CAF 710 of 2004

DATE DELIVERED:

10 October 2007

PLACE DELIVERED:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

16 April 2007, 21 September 2007 and 4 October 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Farrar, Gesini and Dunn

COUNSEL FOR THE RESPONDENT	Ms J Godtschalk
SOLICITOR FOR THE RESPONDENT	Delaney Lawyers

Orders

It is ordered that:

The husband will pay the wife’s costs of and incidental to any application made or subpoenas issued by the husband in relation to Ms Bowie or Bowie Smith Pty Ltd.
Otherwise there is no order for costs as between the parties in relation to property matters.

IT IS NOTED that publication of this judgment under the pseudonym Bartlett & Gibson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 710 of 2004

MR BARTLETT

Applicant

And

MS GIBSON

Respondent

REASONS FOR JUDGMENT

(Costs in Property Proceedings)

Background

By an application filed on 9 March 2007 the husband sought that the wife pays his costs of and incidental “to proceedings for property settlement which were determined by orders made on 5 March 2007”.
The wife, in her response filed on 3 April 2007, sought that the husband pays her costs of and incidental to the property proceedings.
The wife was represented in these proceedings by Ms Godtschalk of counsel.
The husband was initially represented by Mr Farrar who was previously represented him in these proceedings. The issue of costs in the property proceedings was before me on three occasions – on 16 April 2007, 21 September 2007 and 4 October 2007. However, between the date of the application for costs having been made and the final hearing of the application, Mr Crowley, who previously had represented the wife, joined the firm of Mr Farrar and on the day of final hearing Mr Farrar attended Court and withdrew from representing the husband who subsequently represented himself.
Although there had been no formal application until shortly before the hearing on behalf of the wife that Mr Farrar disqualify himself, it was clear on the first day that this matter was due to be argued before me that this was an…

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 Bartlett and Gibson (No. 3)

Details

AGLC: Bartlett and Gibson (No. 3) [2007] FamCA 1199
Case: [2007] FamCA 1199
Decision Date: 10 October 2007

CaseChat Overview and Summary

In *Bartlett and Gibson (No. 3)*, the District Court of New South Wales was required to determine the appropriate costs orders following property settlement proceedings between the husband and wife. The dispute concerned the husband's applications and subpoenas relating to Ms Bowie and Bowie Smith Pty Ltd.

The central legal issue before the court was whether the husband should be ordered to pay the wife's costs in relation to his applications and subpoenas concerning Ms Bowie and Bowie Smith Pty Ltd, and whether any other costs orders should be made between the parties in relation to the property matters.

The court ordered that the husband pay the wife's costs of and incidental to any application made or subpoenas issued by the husband in relation to Ms Bowie or Bowie Smith Pty Ltd. However, the court made no further orders for costs as between the parties in relation to the property matters.

Orders

Orders of the court

It is ordered that:

The husband will pay the wife’s costs of and incidental to any application made or subpoenas issued by the husband in relation to Ms Bowie or Bowie Smith Pty Ltd.

Otherwise there is no order for costs as between the parties in relation to property matters.

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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