Crest & Oates (No. 2) - [2009] FamCA 627

FAMILY COURT OF AUSTRALIA

CREST & OATES (NO. 2)

[2009] FamCA 627

FAMILY LAW – COSTS – Costs sought by husband – claim for additional costs he incurred as a result of late and inadequate disclosure by the wife of dealings with funds in her control – application by wife for adjournment of costs pending her appeal in the substantive proceedings, for disqualification of trial judge from hearing the costs claim, and for dismissal of the costs claim – applications of wife dismissed – fixed amount of costs ordered to be paid by wife – payment deferred pending appeal

Family Law Act 1975 (Cth)

APPLICANT:

Mr Crest

RESPONDENT:

Ms Oates

FILE NUMBER:

SYF

2939

2006

DATE DELIVERED:

21 July 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Moore J

HEARING DATE:

14 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Simpson SC

SOLICITOR FOR THE APPLICANT:

Athena Touriki Solicitors

THE RESPONDENT:

Ms Oates appeared on her own behalf

Orders

On or before one month from the date of disposition by the Full Court of the wife’s appeal in the substantive proceedings, being Appeal No EA67/2009, the wife pay to the solicitors for the husband costs fixed in the sum of $70,000.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2939 of 2006

MR CREST

Applicant

And

MS OATES

Respondent

REASONS FOR JUDGMENT

Proceedings

On 28 April 2009 I delivered judgment and made orders in financial proceedings between the parties. On 26 May 2009 the wife filed an appeal from certain of those orders and that remains pending. On 4 July 2009 Le Poer Trench J stayed orders 2 and 3 pending further order on condition that the wife do all things to ensure the hearing of the appeal is not delayed.
There now arise for determination several applications. The husband asks that the wife pay certain costs he incurred in the course of the proceedings, in these terms:
‘1. That the Wife pay to the Husband within twenty eight (28) days from the date of this Order the costs on an indemnity basis of the Husband incurred by him in respect of:
(a) the appearance by his Senior and Junior Counsel and his Solicitor at the hearing of these proceedings on 25, 26 and 27 June 2008;
(b) their further appearances on the application by the wife for the issue of a second certificate pursuant to s.128 of the Evidence Act on 10 October 2008 and 20 November 2008;
(c) the preparation by his Solicitor of the Schedules Exhibit Nos. 41, 43, 44 and 45 in the proceedings including perusal of documents produced by the Wife and the production of documents on subpoena and examination thereof necessarily incidental to their preparation and attendances on Counsel in respect of their preparation;
(d) the appearance by his Senior and Junior Counsel and…

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 Crest & Oates (No. 2)

Details

AGLC: Crest & Oates (No. 2) [2009] FamCA 627
Case: [2009] FamCA 627
Decision Date: 14 July 2009

CaseChat Overview and Summary

In *Crest & Oates (No. 2)*, the husband sought an order for costs against the wife, claiming these additional costs were incurred due to the wife's late and inadequate disclosure of dealings with funds under her control. The wife, in turn, applied for an adjournment of the costs hearing pending her appeal in the substantive proceedings, sought the disqualification of the trial judge from hearing the costs claim, and moved for the dismissal of the costs claim itself.

The court was required to determine whether to grant the wife's applications for adjournment, disqualification, and dismissal of the costs claim. It also had to consider the merits of the husband's claim for additional costs arising from the wife's alleged disclosure failures.

Moore J dismissed the wife's applications. The judge reasoned that the wife's conduct in relation to disclosure had caused the husband to incur additional costs, justifying an award in his favour. The court found no basis to disqualify the trial judge or to adjourn the costs proceedings indefinitely.

Consequently, the court ordered the wife to pay a fixed amount of $70,000 in costs to the husband's solicitors. However, the payment of this sum was deferred until one month after the Full Court's disposition of the wife's appeal in the substantive proceedings.

Orders

Orders of the court

On or before one month from the date of disposition by the Full Court of the wife’s appeal in the substantive proceedings, being Appeal No EA67/2009, the wife pay to the solicitors for the husband costs fixed in the sum of $70,000.

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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