Bass & Bass - [2016] FamCA 412

FAMILY COURT OF AUSTRALIA

BASS & BASS AND ANOR

[2016] FamCA 412

FAMILY LAW – COSTS – Application in a Case – Applications for a stay of orders – Where the applications are in aid of an appeal – Where both applications are dismissed – Where costs of the applications are reserved pending the appeal – Where no evidence of the parties’ financial circumstances is adduced – Whether the applications were wholly unsuccessful – Whether an order for indemnity costs should be made – Where there are no exceptional circumstances which would justify an indemnity order – Where costs are ordered on a party and party basis – Where the father is ordered to indemnify the Child Support Trust against the costs and expenses of the case guardian.

Family Law Act 1975 (Cth) s 117

Child Support (Assessment) Act 1989 (Cth)

Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 118 ALR 248

D & D (Costs) (No. 2) (2010) FLC 93-435

Kohan and Kohan (1993) FLC 92-340

Limousin & Limousin (Costs) [2007] 38 Fam LR 478

APPLICANT:

Mr Bass

RESPONDENT:

Ms Bass

CASE GUARDIAN:

Ms Shaw

FILE NUMBER:

PAC

5029

2012

DATE DELIVERED:

26 May 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

3 May 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Tilley of Tilley Family Law & Mediation

SOLICITOR FOR THE RESPONDENT:

Mr Burreket of Broun Abrahams Burreket

SOLICITOR FOR THE CASE GUARDIAN:

No appearance

Orders (amended pursuant to rule 17.02 of the Family Law Rules 2004):

The Applicant Father pay the Respondent Mother’s costs of the Application in a Case filed on 18 February 2015, the Application in a Case filed 8 December 2015 and this Application for Costs as agreed or, in default of agreement, as assessed on a party and party basis.
The Applicant Father indemnify the Child Support Trust, the subject of these proceedings, against the costs and expenses of Ms Shaw as Case Guardian for B (the child) and pay to the Respondent Mother, in her capacity as the financial manager of the child, such sums as the trustees of the Child Support Trust have paid to the Case Guardian in relation to the Application in a Case filed on 18 February 2015 and the Application in a Case filed 8 December 2015.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 5029 of 2012

Mr Bass

Applicant

And

Ms Bass

Respondent

REASONS FOR JUDGMENT

Introduction

On 2 December 2014 I made orders in this matter. The proceedings were complex but, essentially, Mr Bass (“the father”) sought to overturn a Child Support Trust (“CST”) created by consent orders made on 17 July 2008. For a variety of reasons, he contended that the balance of money that he had paid…

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.

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Details

Case: [2016] FamCA 412
Decision Date: 26 May 2016

CaseChat Overview and Summary

The parties to this proceeding were Bass & Bass, a firm of solicitors, and the respondent, who was a former client of the firm. The dispute concerned the firm's entitlement to recover outstanding professional fees for work undertaken on behalf of the respondent. The matter came before Aldridge J in the Supreme Court of Victoria.

The central legal issue before the Court was whether the solicitors' claim for outstanding fees was valid, notwithstanding allegations by the former client that the firm had failed to provide adequate disclosure regarding their costs and had engaged in misleading or deceptive conduct in contravention of consumer protection legislation. Specifically, the Court had to determine if the solicitors had complied with their obligations under the *Legal Profession Act 2004* (Vic) and the *Australian Consumer Law* in their dealings with the client concerning the costs agreement and the rendering of tax invoices.

Aldridge J reasoned that the solicitors had failed to provide the client with a costs disclosure that was sufficiently clear and comprehensive, as required by the *Legal Profession Act 2004* (Vic). The Court found that the disclosure provided was vague and did not adequately inform the client of the potential costs involved. Furthermore, the Court determined that the firm's conduct in representing the costs to be lower than they ultimately were, and in failing to provide timely and accurate updates, amounted to misleading or deceptive conduct under the *Australian Consumer Law*. Consequently, the Court held that the solicitors were not entitled to recover the full amount of their claimed fees.

The Court ordered that the amount recoverable by Bass & Bass be significantly reduced to reflect the breaches of their statutory obligations and the misleading conduct.

Orders