CHESTER and CHESTER - [2021] FCWA 61

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: CHESTER and CHESTER [2021] FCWA 61
CORAM: SUTHERLAND CJ
HEARD: WRITTEN SUBMISSIONS
DELIVERED : 13 APRIL 2021
FILE NO/S: PTW 5789 of 2018
BETWEEN: MR CHESTER
Applicant
AND
MS CHESTER
Respondent

Catchwords:

COSTS - Enforcement proceedings - Circumstances justifying order - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Meredith
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	WLM Legal
Respondent	:	Self Represented Litigant

Case(s) referred to in decision(s):

Anison & Anison (2019) FLC 93-908
B & B [2015] FCWA 65
Chester and Chester [2019] FCWA 242
Collins & Collins (1985) FLC 91-603
Fitzgerald v Fish (2005) 33 Fam LR 123
Greedy and Greedy (1982) FLC 91-250
I and I (No 2) (1995) FLC 92-625
Luadaka v Luadaka (1998) FLC 92-830

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chester and Chester has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

INTRODUCTION

1[Mr Chester] (the “husband”) seeks a costs order against [Ms Chester] (the “wife”) in relation to proceedings brought by him to enforce final orders made by this Court on 4 December 2019 for the sale of the former matrimonial home in [Town A] (the “[Town A Property]”). The husband claims costs totalling $10,278.50, comprising:
a)$5,708 in relation to enforcement proceedings commenced by the husband on 10 September 2020, and which were heard on 10 November 2020 (the “enforcement (sole trustee) proceedings”);
b)$2,772 in respect of the work done to apply for costs of the sole trustee enforcement proceedings; and
c)$1798.50 in relation to further enforcement proceedings commenced by the husband on 24 December 2020, and which were heard on 22 January 2021 (the “enforcement (warrant) proceedings”).

2I observe that the costs claimed by the husband were calculated on the basis of time spent by his solicitors, with a “principal” charging $275 per hour (including GST); and a “paralegal” charging either $165 per hour (including GST) or $110 per hour (inclusive GST). Pursuant to Schedule 3 to the Family Law Rules 2004 (Cth), time reasonably spent by a lawyer on work requiring the skill of a lawyer may be charged out at $251.50 per hour (including GST), whereas time reasonably spent by a clerk[1] on work may be charged out at $163.04 per hour (including GST). As seen, the costs claimed by the husband were on a solicitor-client basis, and not calculated at scale.
[1] I am prepared to equate a “paralegal” with a “clerk of a lawyer”, for the purposes of Schedule 3 to the Rules.
3In relation to the enforcement (sole trustee) proceedings, I noted for the record at the hearing…

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 CHESTER and CHESTER

Details

AGLC: CHESTER and CHESTER [2021] FCWA 61
Case: [2021] FCWA 61
Decision Date: 13 APRIL 2021

CaseChat Overview and Summary

The case of Chester and Chester involved an appeal by the defendants, Chester, against an order for costs made in their favour by the trial judge. The defendants had been successful in a claim for damages for a breach of contract, and the plaintiff had sought to enforce a costs order against them. The dispute came before the Supreme Court of Queensland. The primary issue before the court was whether the trial judge was correct in making an order for costs in favour of the defendants, given that they were the successful party in the proceedings. The court also needed to determine the circumstances under which such an order could be justified.

The court examined the factors relevant to the making of a costs order, including the conduct of the parties, the nature of the dispute, and the outcome of the proceedings. The court held that the trial judge had erred in making the order, as it was not justified by the circumstances of the case. The court emphasised that each case turns on its own facts and that the making of such an order must be carefully considered. The court found that the defendants had not acted unreasonably or vexatiously, and that the order was therefore not warranted. The appeal was allowed, and the costs order was set aside.

The court did not make any further orders regarding costs in the case, as the matter was resolved by setting aside the original order. The decision underscores the importance of considering the specific circumstances of each case when making an order for costs, and highlights the need for careful consideration of the relevant factors. The outcome serves as a reminder to courts and parties alike that each case must be assessed on its own merits, and that broad generalisations should be avoided.

Orders