Bryer and Bryer and Anor - [2012] FamCA 884

FAMILY COURT OF AUSTRALIA

BRYER & BRYER AND ANOR

[2012] FamCA 884

FAMILY LAW – COSTS – where the estate of the second respondent sought an order that the husband and wife pay the costs thrown away by the compromise reached in relation to the s 79 proceedings between the applicant and first respondent – where an order for costs made in favour of the estate of the second respondent on a party/party basis against the husband and wife in equal portion.

Family Law Act 1975 (Cth) s 79, 117(2), s 117(2A)

APPLICANT:

Ms A Bryer

FIRST RESPONDENT:

Mr B Bryer

SECOND RESPONDENT:

Estate of the late Ms C Bryer

FILE NUMBER:

SYC

5342

2010

DATE DELIVERED:

31 August 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

31 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr O’Brien

SOLICITOR FOR THE APPLICANT:

Delaney Lawyers

SOLICITOR FOR THE FIRST RESPONDENT:

Diamond Conway Lawyers

SOLICITOR FOR THE SECOND RESPONDENT:

Paltos Briggs Family Lawyers

Orders

Pursuant to Rule 6.15 that Ms D is appointed the legal representative of the second respondent being the estate of the late Ms B Bryer.
That the husband and the wife shall forthwith serve upon the solicitor for the second respondent a copy of the agreement entered into between them by which they compromised these proceedings.
That the husband and wife pay in equal portion the costs incurred by the estate on a party/party basis in these proceedings such costs to be agreed within twenty eight (28) days or assessed and paid within twenty eight (28) days of agreement or assessment.
That the proceedings constituted by the Response filed by the late Ms C Bryer on 17 February 2011 are transferred to the Supreme Court of New South Wales.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bryer & Bryer 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:

Ms A Bryer

Applicant

And

Mr B Bryer

First Respondent

And

Estate of the late Ms C Bryer

Second Respondent

REASONS FOR JUDGMENT

Introduction

These reasons were delivered orally.
On 8 August 2012 in these proceedings, there being no appearance by or on behalf of the husband, I made orders that:
1.The second respondent has leave to make an oral application for costs and a direction that the husband and wife disclose to the second respondent the terms and provide a copy of the Terms of Settlement.
2.Those applications are adjourned for hearing to 9.30 am on 31 August 2012
3. The second respondent’s costs of today are reserved.
For the reasons outlined by the solicitor for the second respondent I am satisfied that a copy of the agreement entered into between the husband and the wife otherwise known as the ‘Terms of Settlement’ should be provided to the second respondent being the estate of the late Ms C Bryer.

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 Bryer and Bryer and Anor

Details

AGLC: Bryer and Bryer and Anor [2012] FamCA 884
Case: [2012] FamCA 884
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application for costs by the estate of the late Ms C Bryer against the applicant wife and first respondent husband. The original proceedings involved an application under s 79 of the *Family Law Act 1975* (Cth) by the wife against the husband, in which the estate of the late Ms Bryer (the husband's mother) was joined as the second respondent. The s 79 proceedings were subsequently compromised by the husband and wife through a settlement agreement. The estate was not a party to this settlement.

The primary legal issue before the court was whether the estate of the late Ms Bryer was entitled to an order for costs against the husband and wife, and if so, on what basis. The court was required to determine if the circumstances justified an order for costs under s 117(2) of the Act, considering that neither the wife nor the husband had obtained relief against the estate, and that the estate's own proceedings were to be transferred to the Supreme Court of New South Wales. The court also considered the financial circumstances of the parties and an agreement between the husband and wife regarding the costs of upholding a covenant related to the late Ms Bryer's will.

Justice Ryan found that the failure of the husband and wife to obtain orders against the estate constituted justifying circumstances for an award of costs in favour of the estate. The court reasoned that the compromise of the s 79 proceedings meant the costs incurred by the estate were effectively thrown away, necessitating an order for costs rather than an adjournment. Furthermore, the court noted that the parties were of considerable wealth, and an agreement between the husband and wife to share equally the costs of upholding a covenant concerning the late Ms Bryer's will supported an equal apportionment of any costs order.

The court ordered that the husband and wife pay the costs incurred by the estate of the late Ms Bryer on a party/party basis, in equal portions. These costs were to be agreed within twenty-eight days or assessed and paid within twenty-eight days of agreement or assessment. The proceedings initiated by the late Ms Bryer were transferred to the Supreme Court of New South Wales.

Orders