Bing and Bing and Anor (No 3) - [2009] FamCA 936

FAMILY COURT OF AUSTRALIA

BING & BING AND ANOR (NO. 3)

[2009] FamCA 936

FAMILY LAW – PRACTICE AND PROCEDURE – Extension of time to review of decision of a registrar relating to the determination of a disputed costs account where party gave instructions to lawyers who did not take action expeditiously nor advise the party successful under the costs determination

Family Law Act 1975 (Cth)
Family Law Rules 2004 Rules 1.14, 19.20, 19.22(1), 19.23
Evidence Act 1995 (Cth) ss 76(1), 79

Makita (Australia) Pty. Ltd. v Sprowles [2001] NSW CA 3005
HG v R [1999] HCA 2,
Sydneywide Distributers Pty. Ltd. v Red Bull Australia Pty. Ltd. 2002 FCA FC 157
Adler v Australian Securities and Investments Commission 2003 NSW CA 131
McMahon v McMahon (1976) FLC 90-038
Clivery v Conway (2007) FamCA 1435
Gallo v Dawson (1990) HCA 30
Brott v Abeles 2007 FLC 93-310

APPLICANT:

Ms Bing

RESPONDENT:

Mr Bing

INTERVENOR:

Rockman & Rockman

FILE NUMBER:

MLF

1745

2006

DATE DELIVERED:

1 October, 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

CRONIN J

HEARING DATE:

4 September, 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr. Walmsley SC

SOLICITOR FOR THE APPLICANT:

Buxton & Associates

COUNSEL FOR THE INTERVENOR:

Mr. Bloch

SOLICITOR FOR THE INTERVENOR:

Rockman & Rockman

Orders

That subject to the conditions set out below, the wife have leave to review the orders of registrar Riddiford made 8 April, 2009 out of time.
If the said conditions referred to are not met in full, the wife’s application filed 28 July, 2009 stands dismissed and the leave referred to in paragraph (1) hereof is declined.
If the said conditions are met in full, by arrangement with the Associate to the Honourable Justice Cronin, the matter of the disputed cost assessment be listed for hearing and determination.
The conditions referred to in paragraphs (1) to (3) hereof are as follows :
(a)by 30 October, 2009, the wife present to this Court a minute of orders sought with the consent of the husband and the wife for :
(i)the expeditious sale of the business referred to by Mr. B. Walmsley S.C. in submissions made on 4 September, 2009; and
(ii)from the net proceeds, the sum of $285,798.44 for and on behalf of the wife, be paid into the trust account of Rockman and Rockman;
(b)by 30 October, 2009, the wife file and serve a precise list of objections to the costs account of Rockman & Rockman as certified by the registrar to sufficiently identify what matters are in dispute.
That subject to the wife complying with paragraph (4) hereof, pending the ultimate determination of the costs dispute, Rockman & Rockman hold the said funds in trust for themselves and the wife.
That the costs of Rockman & Rockman upon the hearing concluded on 4 September, 2009 be reserved to be determined upon submission in writing to be filed and served by them by 16 October, 2009 to which any submission and reply by the wife be…

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: [2009] FamCA 936
Decision Date: 1 October, 2009

CaseChat Overview and Summary

In the matter of *Bing and Bing and Anor (No 3)*, Cronin J considered an application by the wife for leave to review out of time the orders of registrar Riddiford made on 8 April 2009. The dispute concerned a costs assessment and the proposed sale of a business.

The primary legal issue before the court was whether to grant the wife leave to review the registrar's orders retrospectively, given the delay in bringing the application. This involved assessing whether the conditions for such a review could be met and what interim arrangements should be put in place regarding disputed funds.

Cronin J determined that leave to review the registrar's orders could be granted, but only subject to strict conditions. These conditions required the wife, by 30 October 2009, to present a minute of orders agreed by both parties for the expeditious sale of a business and the payment of a specific sum from the net proceeds to the wife's solicitors. Additionally, the wife was required to file and serve a precise list of objections to the costs account. If these conditions were met, the matter of the disputed cost assessment would be listed for hearing. Pending the determination of the costs dispute, the funds were to be held in trust for Rockman & Rockman and the wife. The costs of Rockman & Rockman from a previous hearing were reserved.

Orders

Orders of the court

That subject to the conditions set out below, the wife have leave to review the orders of registrar Riddiford made 8 April, 2009 out of time.

If the said conditions referred to are not met in full, the wife’s application filed 28 July, 2009 stands dismissed and the leave referred to in paragraph (1) hereof is declined.

If the said conditions are met in full, by arrangement with the Associate to the Honourable Justice Cronin, the matter of the disputed cost assessment be listed for hearing and determination.

The conditions referred to in paragraphs (1) to (3) hereof are as follows :

(a) by 30 October, 2009, the wife present to this Court a minute of orders sought with the consent of the husband and the wife for :

(i) the expeditious sale of the business referred to by Mr. B. Walmsley S.C. in submissions made on 4 September, 2009; and

(ii) from the net proceeds, the sum of $285,798.44 for and on behalf of the wife, be paid into the trust account of Rockman and Rockman;

(b) by 30 October, 2009, the wife file and serve a precise list of objections to the costs account of Rockman & Rockman as certified by the registrar to sufficiently identify what matters are in dispute.

That subject to the wife complying with paragraph (4) hereof, pending the ultimate determination of the costs dispute, Rockman & Rockman hold the said funds in trust for themselves and the wife.

That the costs of Rockman & Rockman upon the hearing concluded on 4 September, 2009 be reserved to be determined upon submission in writing to be filed and served by them by 16 October, 2009 to which any submission and reply by the wife be filed and served by no later than 22 October, 2009 and to be determined in chambers.

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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