Cook and Cook (No 4) - [2010] FamCA 786

FAMILY COURT OF AUSTRALIA

COOK & COOK (NO. 4)

[2010] FamCA 786

FAMILY LAW – COSTS – Application for costs by third parties – Accounts rendered for complying with production of documents sought on subpoena – Subpoenae wide and excessive in their scope – Just for a costs order to be made – Costs as claimed excessive – Court substituted appropriate quantum of costs

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth), Rule 15.23, Schedule 3

Moriarty and Moriarty [2009] FamCA 369
Relationships Australia (Qld) v M [2006] FamCA 1265
G and D and D (2005) FamCA 1429
Lucas Industries v Hewitt (1978) 18 ALR 555

APPLICANT:

MS COOK

RESPONDENT:

MR COOK

THIRD PARTIES:

MP BUSINESS CONSULTANTS PTY LTD and MR BT

FILE NUMBER:

MLF

1997

2003

DATE DELIVERED:

8 JANUARY 2010

PLACE DELIVERED:

MELBOURNE

PLACE HEARD:

MELBOURNE

JUDGMENT OF:

YOUNG J

HEARING DATE:

22 DECEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR ST JOHN SC

SOLICITOR FOR THE APPLICANT:

MARSHALLS & DENT

COUNSEL FOR THE RESPONDENT:

MR SPICER

SOLICITOR FOR THE RESPONDENT:

KENNEDY WISEWOULDS

COUNSEL FOR THE THIRD PARTIES:

MR HARRISS

SOLICITOR FOR THE THIRD PARTIES:

MILLS OAKLEY

Orders

IT IS ORDERED:

THAT within 180 days of the date hereof, and interest free for that period, the wife pay to the solicitors for the Third Parties costs of and incidental to the subpoenae caused to be issued on her behalf fixed in the sum of $4,450, plus GST.
THAT in default of payment within the 180 day period the wife then pay interest at the rate fixed from time to time by the Family Law Rules until the whole of the quantum of costs has been paid.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Senior Counsel and Counsel for each of the husband and wife and solicitor appearing as Counsel for the Third Parties.

IT IS NOTED that publication of this judgment under the pseudonym Cook & Cook is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1997 of 2003

MS COOK

Applicant

And

MR COOK

Respondent

And

MP BUSINESS CONSULTANTS PTY LTD and MR BT

Third Parties

REASONS FOR JUDGMENT

This matter has a long, complex and continuing history before this Court. I have concluded a fourteen day defended hearing and have now reserved to write and deliver a Judgment on s.79 property and financial issues. Shortly after the conclusion of that defended hearing and prior to Judgment, the mortgagee of a substantial property development integral to the determination of the assets and liabilities of the husband and wife, BankWest, obtained a Court order for the appointment of a receiver / manager to the XC project. Thereafter the various trade creditors of that development obtained the appointment of a liquidator to the building project companies associated therewith.
The matter was listed before me on 5 October 2009 for Counsel’s…

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 Cook and Cook (No 4)

Details

AGLC: Cook and Cook (No 4) [2010] FamCA 786
Case: [2010] FamCA 786
Decision Date: 8 JANUARY 2010

CaseChat Overview and Summary

In *Cook and Cook (No 4)*, Young J of the Family Court of Australia considered an application for costs by third parties following the issuance of subpoenas by the wife. The dispute concerned the quantum of costs payable by the wife to the solicitors for the third parties, which had been fixed at $4,450 plus GST.

The primary legal issue before the court was to determine the appropriate orders regarding the payment of these costs, including any applicable interest and the certification of the need for senior counsel.

Young J ordered that the wife pay the fixed costs of $4,450 plus GST to the solicitors for the third parties within 180 days, interest-free for that period. In the event of default in payment within the specified timeframe, the wife was to pay interest at the rate prescribed by the Family Law Rules until the full amount of costs was paid. Furthermore, the court certified that the matter reasonably required the attendance of Senior Counsel for both the husband and wife, and counsel appearing as solicitor for the third parties, pursuant to Rule 19.50 of the Family Law Rules.

Orders

Orders of the court

IT IS ORDERED:

THAT within 180 days of the date hereof, and interest free for that period, the wife pay to the solicitors for the Third Parties costs of and incidental to the subpoenae caused to be issued on her behalf fixed in the sum of $4,450, plus GST.

THAT in default of payment within the 180 day period the wife then pay interest at the rate fixed from time to time by the Family Law Rules until the whole of the quantum of costs has been paid.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Senior Counsel and Counsel for each of the husband and wife and solicitor appearing as Counsel for the Third Parties.

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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