Clare and Chua - [2020] FamCA 661

FAMILY COURT OF AUSTRALIA

CLARE & CHUA

[2020] FamCA 661

FAMILY LAW – COSTS – Circumstances justifying order for costs where the applicant seeks his costs on an indemnity basis and the respondent seeks no order for costs – consideration of the relevant provisions of the Family Law Act 1975 and authorities – order made for respondent to pay the applicant’s party/party costs

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 r 19.08

In the Marriage of I & I (No 2) (1995) 22 Fam LR 557;
Wooton and Hillier [2016] FamCA 965;
Worth & Worth (No.2) [2019] FamCAFC 126;
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248

APPLICANT:

Mr Clare

RESPONDENT:

Mr Chua

FILE NUMBER:

MLC

13274

2017

DATE DELIVERED:

13 August 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Williams J

HEARING DATE:

Written Submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Written Submissions

SOLICITOR FOR THE APPLICANT:

Mathews Family Law

COUNSEL FOR THE RESPONDENT:

Written Submissions

SOLICITOR FOR THE RESPONDENT:

Beswick Foulkes Family Law

Orders

The respondent pay the applicant’s party/party costs and disbursements of and incidental to:
(a)       the threshold proceeding which commenced on 18 December 2017;
(b)       the Application in a Case filed 9 December 2019; and
(c)       preparation of the costs submissions
as agreed, and in default of agreement, to be taxed.
The payment referred to in order (1) hereof be made within 30 days of agreement as to quantum, or failing agreement within 30 days of the determination of the taxed costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Clare & Chua has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13274 of 2017

Mr Clare

Applicant

And

Mr Chua

Respondent

REASONS FOR JUDGMENT

Introduction

Background

On 18 December 2017, the applicant commenced proceedings in the Federal Circuit Court seeking, inter alia, a declaration pursuant to s.90 RD of the Family Law Act 1975 (“the Act”), a de facto relationship existed between the parties from February 2004 until September 2016 (“the threshold issue”). He also sought orders for a property settlement (“the substantive proceedings).
On 12 January 2018, the respondent filed a Response seeking that the application be dismissed.
On 12 June 2018, Judge Curtain transferred the proceeding to the Family Court. On 3 June 2019, the trial of the threshold issue commenced and concluded on 26 July 2019. Orders were made on 26 July 2019 pursuant to s90RD of the Act declaring a de facto…

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 Clare and Chua

Details

AGLC: Clare and Chua [2020] FamCA 661
Case: [2020] FamCA 661
Decision Date: 13 August 2020

CaseChat Overview and Summary

In the matter of *Clare and Chua*, heard before Williams J, the dispute concerned the costs of proceedings. The applicant sought an order for the respondent to pay their party/party costs and disbursements related to a threshold proceeding commenced on 18 December 2017, an Application in a Case filed on 9 December 2019, and the preparation of costs submissions.

The central legal issue before the court was the quantum and allocation of costs. Specifically, the court was required to determine whether the respondent should be ordered to pay the applicant's costs for the identified proceedings and submissions, and if so, the mechanism for their quantification.

Williams J ordered that the respondent pay the applicant’s party/party costs and disbursements for the threshold proceeding, the Application in a Case, and the preparation of costs submissions. These costs were to be agreed between the parties, or failing agreement, to be taxed. The payment was to be made within 30 days of agreement on the quantum of costs, or within 30 days of the determination of taxed costs.

Orders

Orders of the court

The respondent pay the applicant’s party/party costs and disbursements of and incidental to:

(a) the threshold proceeding which commenced on 18 December 2017;

(b) the Application in a Case filed 9 December 2019; and

as agreed, and in default of agreement, to be taxed.

The payment referred to in order (1) hereof be made within 30 days of agreement as to quantum, or failing agreement within 30 days of the determination of the taxed costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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