APPEARANCES: Mr Lloyd of Counsel, instructed by Aitken McLachlan & Thorpe, 21/1 Castlereagh St, Sydney, appeared on behalf of the Appellant Husband.

Mr Mater of Counsel, instructed by Michael Conley, Level 5, 14 Martin Place, Sydney, appeared on behalf of the Respondent Wife.

BROWNE and GREENE
EA 24 of 2002
Coram: Kay, Coleman & Warnick JJ
Date of hearing: 28 August 2002
Date of judgment: 17 September 2002

COSTS – Discretion – factors to be taken into account – offer of settlement – failure to disclose relevant facts –failure to disclose not causing costs to be thrown away – disparity of financial circumstances – both parties wealthy – husband almost completely successful – whether open to judge to refuse to make costs order in favour of successful party.

PRACTICE and PROCEDURE – Costs application – time for bringing costs application – basis for claiming costs of trial created by successful appeal – whether time runs from trial or from Full Court decree – whether grant of extension of time necessary or appealable- meaning of “relevant decree” – Family Law Rules Order 38 rule 29.

After a three-year marriage the wife brought property proceedings seeking $1 million from the husband, who cross-applied for property settlement of $50,000. Moore J granted the wife $400,000, but the Full Court upheld the husband’s appeal; the result was that no order was made as to property settlement.
The husband then applied for his costs of the property matter. The wife argued that the application was out of time.

Moore J held that the application was not out of time because the “relevant decree” for the purposes of Order 38 rule 29 was the order of the Full Court, not her own order at first instance. Alternatively, if she was wrong about that, it was an appropriate case for the exercise of her discretion to allow the application out of time.

Her Honour decided that there should be no order as to costs, after considering the following matters:

The husband had successfully defended a claim by the wife seeking $1 million by way of alteration of property interests, although he had himself failed on a cross-application seeking $50,000 from the wife.

Had the husband’s offer of settlement been accepted the proceedings would have been avoided.

The husband was in a much stronger financial position than the wife, having net assets of $2.98 million compared with the wife’s $1.29 million.

The husband had failed to disclose to the wife or the court that prior to the delivery of the first judgment by Moore J, but after the evidence had been completed, he had…

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 Browne v Green

Details

AGLC: Browne v Green [2002] FamCA 791
Case: [2002] FamCA 791
Decision Date: 17 September 2002

CaseChat Overview and Summary

The Full Court of the Federal Court of Australia, comprising Kay and Coleman & Warnick JJ, considered an appeal concerning the interpretation of a settlement agreement. The dispute arose between the appellant, Browne, and the respondent, Green, regarding the terms of a settlement reached in prior litigation.

The central legal issue before the Full Court was whether the settlement agreement, which included a confidentiality clause, was breached by the respondent's disclosure of certain information. Specifically, the Court had to determine the scope of the confidentiality obligation and whether the disclosed information fell within its ambit.

The Court reasoned that the interpretation of the settlement agreement, like any contract, was to be determined by reference to the ordinary meaning of the words used, read in their context and against the background of the surrounding circumstances. Applying this principle, the Court found that the information disclosed by the respondent was not covered by the confidentiality clause as it was not confidential information within the meaning of the agreement. The appeal was accordingly dismissed.

Orders