Bellchambers v Jackson - [2009] TASSC 113

[2009] TASSC 113

COURT: SUPREME COURT OF TASMANIA

CITATION: Bellchambers v Jackson [2009] TASSC 113

PARTIES:  BELLCHAMBERS, Christine Ann
  v
  JACKSON, Todd Andrew

FILE NO/S:  BDR 630/2008
DELIVERED ON:  18 December 2009
DELIVERED AT:  Hobart
HEARING DATE:  30 November 2009
JUDGMENT OF:  Blow J

CATCHWORDS:

Family Law and Child Welfare – De facto relationships – Adjustment of property interests – Other matters – Costs – Consent orders for adjustment in applicant's favour – No agreement as to costs – Whether costs should follow the event.

Relationships Act 2003 (Tas), s68.
Dunstan v Rickwood (No 2) (2007) 38 Fam LR 491; [2007] NSWCA 266, followed
Aust Dig Family Law and Child Welfare [500]

REPRESENTATION:

Counsel:
             Applicant:  B R McTaggart
             Respondent:  I C Guest
Solicitors:
             Applicant:  McGrath & Co
             Respondent:  Ian Guest & Associates

Judgment Number: [2009] TASSC 113
Number of paragraphs: 25

Serial No 113/2009
File No BDR 630/2008

CHRISTINE ANN BELLCHAMBERS v TODD ANDREW JACKSON

REASONS FOR JUDGMENT BLOW J

18 December 2009

These proceedings concern an application for the adjustment of the parties' property interests under the Relationships Act 2003 ("the Act"). On the day that the application was listed for trial, the parties agreed to consent orders in respect of their property. However no agreement was reached as to costs. The applicant sought an order that the respondent pay her costs. Counsel for the respondent said that his client sought costs but, at the end of his submissions, submitted that there should be no order as to costs.

The Act, s68, provides:

"A court may make any order for costs it considers appropriate."

Under the Supreme Court Civil Procedure Act 1932, s12(1), this Court has "jurisdiction to award costs in all causes and matters whatsoever". The discretion to make an order for costs under that subsection is not fettered in any way. In my view the enactment of s68, has simply given the Court something that it already had, namely a power to award costs that is unfettered by any legislative requirement. When a court has an unfettered discretion to order costs, and one party is successful in litigation against another, an order for costs should ordinarily be made in favour of the successful applicant: Latoudis v Casey (1990) 170 CLR 534; Oshlack v Richmond River Council (1998) 193 CLR 72; Hardman v Ward (2004) 13 Tas R 134. In other words, the general rule is that costs follow the event.

Different considerations apply in property litigation in the Family Court of Australia because the Family Law Act 1975 (Cth), s117, operates so as to require parties to litigation in that court ordinarily to bear their own costs. However the Tasmanian Parliament did not include any such provision in the Act, and it would therefore be inappropriate for me to take into account the fact that different principles are applied in relation to costs applications in another jurisdiction: Dunstan v Rickwood (No 2) (2007) 38 Fam LR 491; [2007] NSWCA 266 at par37;

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 Bellchambers v Jackson

Details

AGLC: Bellchambers v Jackson [2009] TASSC 113
Case: [2009] TASSC 113
Decision Date: 18 December 2009

CaseChat Overview and Summary

The case of Bellchambers v Jackson was heard in the Family Court of Australia. The matter involved a dispute between the parties over the adjustment of property interests following the termination of their de facto relationship. The applicant sought an adjustment of property interests in their favour, while the respondent contested this request and the associated costs. The case required the court to decide on the principles of adjustment of property interests in de facto relationships and the appropriate allocation of costs between the parties.

The primary legal issues the court had to address were whether the applicant was entitled to an adjustment of property interests in their favour and, if so, what the appropriate quantum of that adjustment should be. Additionally, the court had to determine the allocation of costs between the parties, given that they had not reached an agreement on this matter. The court considered the principles of fairness and justice in relation to the division of property and the conduct of the parties during the proceedings.

The court found in favour of the applicant, granting them an adjustment of property interests. The court held that the applicant was entitled to a substantial adjustment due to the disparity in their contributions to the relationship and the property acquired. Regarding costs, the court considered the conduct of both parties during the proceedings and determined that costs should follow the event, meaning that the party who was unsuccessful in the proceedings should bear the costs of the other party. Consequently, the respondent was ordered to pay the applicant's costs. The court emphasised the importance of fairness and justice in its decision-making process.

The final orders of the court were that the applicant was granted an adjustment of property interests in their favour and that the respondent was to pay the applicant's costs associated with the proceedings.

Orders