CLEWER & CLEWER (No.2) - [2019] FCCA 938

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLEWER & CLEWER (No.2)

[2019] FCCA 938

Catchwords:
FAMILY LAW – Interest paid subsequent to orders – costs applications.

Legislation:

Family Law Act 1975 (Cth), ss.79A, 117, 117B, 601

Federal Circuit Court Rules 2001 (Cth) s.25B

Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015 r.21

Real Property Act1900 (NSW) s.57

Cases cited:

AON Risk Service v Australian National University (2009) 239 CLR 175

Benedict & Peake (No 3) [2014] FCCA 642

Bryant v Hawkesbury Community Radio [2014] NSWSC 848

Colgate-Palmolive & Cussons (1993) 46 FCR 225

Prantage & Prantage [2015] FamCAFC 145

Re JJT; Ex parte Victoria Legal Aid 195 CLR 184

Simic & Norton [2017] FamCA 1007

Applicant:

MS CLEWER

Respondent:

MR CLEWER

File Number:

PAC 2725 of 2017

Judgment of:

Judge Harman

Hearing date:

12 February 2019

Date of Last Submission:

12 February 2019

Delivered at:

Parramatta

Delivered on:

12 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr J Grew

Solicitors for the Applicant:

Coleman Greig Lawyers

Solicitors for the Respondent:

Mr G Penhall, Penhall & Co Lawyers

ORDERS

THE COURT NOTES THAT:

The wife has now paid to the husband the sum of $100,000 that was required to be paid pursuant to Orders made 20 September 2017 and as varied 31 October 2018.

THE COURT ORDERS THAT:

Pursuant to section 117B(2) of the Family Law Act1975 (Cth) no interest shall be payable by the wife to the husband with respect to the above payment.
Each party shall pay their own costs of an incidental to these proceedings.
Pursuant to section 114 of the Family Law Act 1975 the parties and each of them shall be and are hereby restrained from taking any step with respect to proceedings SYG537/2018 before the Federal Circuit Court Sydney save and except for the purpose of discontinuing those proceedings or providing such other advice to the Court as may be necessary to allow the proceedings to be discontinued or dismissed without any Order for costs in favour of or against either party.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2725 of 2017

MS CLEWER

Applicant

And

MR CLEWER

Respondent

REASONS FOR JUDGMENT

This is the second judgment delivered in these proceedings today. The proceedings relate to the determination of competing claims regarding:
a)What interest, if any, is to be paid upon a sum certain that was to have been paid pursuant to a primary order made 20 September 2017 and subsequently varied; and,
b)What order for costs, if any, is to be made in favour of the husband and whether those costs, if ordered, are awarded on an indemnity basis.
Regrettably, the matter has consumed a significant quantity of time, not only today but on…

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 CLEWER & CLEWER (No.2)

Details

AGLC: Clewer and Clewer (No.2) [2019] FCCA 938
Case: [2019] FCCA 938
Decision Date: 12 February 2019

CaseChat Overview and Summary

This matter concerned an application for costs following the payment of a sum of $100,000 by the wife to the husband, pursuant to earlier court orders. The dispute arose in the context of ongoing family law proceedings.

The primary legal issues before the court were whether interest was payable on the $100,000 sum paid by the wife, and how the costs of the current proceedings should be allocated between the parties. Additionally, the court considered the appropriate disposition of related proceedings before the Federal Circuit Court.

Judge Harman determined that no interest was payable by the wife to the husband on the $100,000 payment, applying section 117B(2) of the *Family Law Act 1975* (Cth). The court ordered that each party bear their own costs for the current proceedings. Furthermore, the court made orders restraining the parties from taking any further steps in related Federal Circuit Court proceedings, except for the purpose of discontinuing them, to facilitate their dismissal without any order as to costs. All outstanding applications and responses were withdrawn and dismissed.

Orders

Orders of the court

THE COURT NOTES THAT:

The wife has now paid to the husband the sum of $100,000 that was required to be paid pursuant to Orders made 20 September 2017 and as varied 31 October 2018.

THE COURT ORDERS THAT:

Pursuant to section 117B(2) of the Family Law Act 1975 (Cth) no interest shall be payable by the wife to the husband with respect to the above payment.

Each party shall pay their own costs of an incidental to these proceedings.

Pursuant to section 114 of the Family Law Act 1975 the parties and each of them shall be and are hereby restrained from taking any step with respect to proceedings SYG537/2018 before the Federal Circuit Court Sydney save and except for the purpose of discontinuing those proceedings or providing such other advice to the Court as may be necessary to allow the proceedings to be discontinued or dismissed without any Order for costs in favour of or against either party.

All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

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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