Begum v Loft, Loft v Begum - [2011] TASSC 3

[2011] TASSC 3

COURT: SUPREME COURT OF TASMANIA

CITATION: Begum v Loft, Loft v Begum [2011] TASSC 3

PARTIES:  BEGUM, Naseem
  v
  LOFT, George Skip

LOFT, George Skip
v
BEGUM, Naseem

FILE NO/S: M262/2006

S699/2010

DELIVERED ON:  10 February 2011
DELIVERED AT:  Hobart
HEARING DATE:  21 December 2010
JUDGMENT OF:  Tennent J

CATCHWORDS:

Family Law and Child Welfare – De facto relationships – Adjustment of property interests – Other matters – Costs – Whether costs should follow the event.

Relationships Act 2003 (Tas), s68.
Bellchambers v Jackson [2009] TASSC 113, referred to.
Aust Dig Family Law and Child Welfare [500]

REPRESENTATION:

Counsel:
             Applicant:  W A Ayliffe
             Respondent:  G J Faulds
Solicitors:
             Appellant:  Walkers
             Respondent:  Faulds & Associates

Judgment Number: [2011] TASSC 3
Number of paragraphs: 20

Serial No 3/2011
File Nos M262/2006
S699/2010

NASEEM BEGUM v GEORGE SKIP LOFT
GEORGE SKIP LOFT v NASEEM BEGUM

REASONS FOR JUDGMENT TENNENT J

10 February 2011

These reasons relate to applications for costs flowing from a judgment delivered in proceedings involving George Skip Loft ("the applicant") and Naseem Begum ("the respondent") on 2 December 2010 (Loft v Begum [2010] TASSC 57). That judgment was in respect of an application brought pursuant to the Relationships Act 2003 ("the Act"), s56, to set aside orders made by the Associate Judge on 20 March 2009.

Course of proceedings between the parties

The respondent filed an application in September 2006 by which she sought an order adjusting property interests as between her and the applicant pursuant to the Act, s40. Orders were made in her favour following a hearing before the Associate Judge. The applicant took almost no part in the actual hearing. He had been represented by counsel throughout the course of the proceedings. The applicant's counsel appeared at the hearing, but the applicant did not. When an application for an adjournment was unsuccessful, the applicant's counsel withdrew and the matter proceeded ex parte.

The orders provided that the applicant pay the respondent a cash sum or, in default of that payment, that she receive a proportion of the proceeds of sale of a property at South Arm. The reasons for decision of the Associate Judge were published on 20 March 2009. The formal orders giving effect to those reasons were taken out on 7 April 2009. On 6 May 2009, the applicant lodged an appeal. It was lodged outside the time allowed for such an appeal. The grounds relied on were largely that the applicant's counsel had not done a number of things. No application was made to extend time nor was there any application to lead evidence on the hearing of the appeal not led at the hearing.

The appeal was listed for directions on 15 June 2009. On 20 May 2009, three affidavits were filed on behalf of the applicant, one by him and two by carers associated with him. On 15 June 2009, directions were made for the filing of affidavit material, and the matter was relisted for mention…

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 Begum v Loft, Loft v Begum

Details

AGLC: Begum v Loft, Loft v Begum [2011] TASSC 3
Case: [2011] TASSC 3
Decision Date: 10 February 2011

CaseChat Overview and Summary

The case of Begum v Loft, Loft v Begum involved a dispute between the parties regarding the adjustment of their property interests following the end of their de facto relationship. The matter was heard in the Family Court of Australia. The primary issue before the court was whether the costs of the proceedings should follow the event, that is, whether the party that lost the case should bear the costs of the proceedings.

The court considered the relevant legal principles regarding costs in family law matters. It noted that the general rule in family law is that costs should follow the event, meaning that the losing party should bear the costs of the proceedings. However, the court also recognised that there are circumstances where it may be appropriate to deviate from this general rule. In this case, the court considered whether any exceptional circumstances existed that would justify a deviation from the general rule.

After considering the evidence and arguments presented by both parties, the court found that there were no exceptional circumstances that would warrant a deviation from the general rule that costs should follow the event. The court held that the losing party should bear the costs of the proceedings. In reaching this decision, the court took into account the conduct of both parties during the proceedings, the outcome of the case, and any other relevant factors.

The court's decision was final and binding on the parties. The losing party was ordered to pay the costs of the proceedings to the winning party. The court's reasoning and outcome in this case provide guidance to parties involved in similar family law disputes regarding the adjustment of property interests and the allocation of costs.

Orders