BURKETT & NOVACK (No.2) - [2019] FCCA 2286

FEDERAL CIRCUIT COURT OF AUSTRALIA

BURKETT & NOVACK (No.2)

[2019] FCCA 2286

Catchwords:
FAMILY LAW – Costs – applicant seeks indemnity costs after property trial – non-disclosure and lack of candour – costs on Family Court scale ordered.

Legislation:

Family Law Act 1975 (Cth) ss.90XT, 117, 117(1), 117(2A), 117C(2)

Family Law Rules 2004 (Cth) sch.3, ch.19

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

Burkett & Novack [2019] FCCA 1362

Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225

In theMarriage of Munday & Bowman 22 Fam LR 321

Prantage & Prantage [2013] FamCAFC 105

Applicant:

MS BURKETT

Respondent:

MR NOVACK

File Number:

MLC 8541 of 2017

Judgment of:

Judge Harland

By way of Written Submissions:

20 June 2019 and 11 July 2019

Date of Last Submission:

11 July 2019

Delivered at:

Melbourne

Delivered on:

22 August 2019

REPRESENTATION

Counsel for the Applicant:

Ms Colla

Solicitors for the Applicant:

Barbayannis Lawyers

The Respondent appearing in person.

ORDERS

That the costs of and incidental to the proceedings be calculated by the applicant in accordance with Schedule 3 of the Family Law Rules and if the quantum is in dispute to be determined by a Registrar pursuant to the provisions of Chapter 19 of the Family Law Rules.
That pursuant to s.90XT of the Family Law Act1975, there be a splittable payment in the superannuation interest of the respondent in the Mr Novack Superannuation Fund (“the Fund”) in respect of the base amount set out herein and there be a corresponding reduction in the interest of the respondent in that said Fund.
That the base amount to be paid to the applicant pursuant to this order be the sum of $20,000.00 of the respondent’s entitlement in the fund.
That the operative time for implementation of the orders is 14 days from the date the orders are made.
That the trustee of the Fund pay or cause to be paid the base amount to the applicant within 14 days of the date hereof and the respondent to retain the Fund for his own use and benefit absolutely.
That within 30 days each party do all things and execute all documents necessary to wind up the company known as Business Pty Ltd.

NOTATION
(A)The respondent is the sole director of the Corporate Trustee of the Fund and procedural fairness has been afforded to him.

IT IS NOTED that publication of this judgment under the pseudonym Burkett & Novack (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8541 of 2017

MS BURKETT

Applicant

And

MR NOVACK

Respondent

REASONS FOR JUDGMENT

The applicant commenced property proceedings on 22 August 2017. The matter initially proceeded to final hearing on 4 March 2019. On this occasion the matter was not reached. The trial ran for two days on 11 and 12 April 2019.
On 23 May 2019 I delivered my reasons in this matter. The parties’ full financial and proprietary circumstances are set…

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 BURKETT & NOVACK (No.2)

Details

AGLC: BURKETT & NOVACK (No.2) [2019] FCCA 2286
Case: [2019] FCCA 2286
Decision Date: 22 August 2019

CaseChat Overview and Summary

In *Burkett & Novack (No.2)*, the applicant sought indemnity costs following a property trial. The dispute concerned the division of assets and the respondent's conduct during the proceedings. The matter came before Judge Harland in the Family Court of Australia.

The primary legal issue before the court was whether the applicant was entitled to an order for indemnity costs, given allegations of non-disclosure and a lack of candour on the part of the respondent. The court was required to consider the respondent's conduct in light of the principles governing cost orders in family law matters.

Judge Harland ordered that the costs of and incidental to the proceedings be calculated by the applicant in accordance with Schedule 3 of the Family Law Rules, with any quantum dispute to be determined by a Registrar. The court also made orders for a splittable payment from the respondent's superannuation interest in the Mr Novack Superannuation Fund to the applicant, amounting to $20,000.00, to be implemented within 14 days. Further orders directed both parties to take all necessary steps to wind up Business Pty Ltd within 30 days.

Orders

Orders of the court

That the costs of and incidental to the proceedings be calculated by the applicant in accordance with Schedule 3 of the Family Law Rules and if the quantum is in dispute to be determined by a Registrar pursuant to the provisions of Chapter 19 of the Family Law Rules.

That pursuant to s.90XT of the Family Law Act 1975, there be a splittable payment in the superannuation interest of the respondent in the Mr Novack Superannuation Fund (“the Fund”) in respect of the base amount set out herein and there be a corresponding reduction in the interest of the respondent in that said Fund.

That the base amount to be paid to the applicant pursuant to this order be the sum of $20,000.00 of the respondent’s entitlement in the fund.

That the operative time for implementation of the orders is 14 days from the date the orders are made.

That the trustee of the Fund pay or cause to be paid the base amount to the applicant within 14 days of the date hereof and the respondent to retain the Fund for his own use and benefit absolutely.

That within 30 days each party do all things and execute all documents necessary to wind up the company known as Business Pty Ltd.

NOTATION

(A) The respondent is the sole director of the Corporate Trustee of the Fund and procedural fairness has been afforded to him.

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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