DARROW & MALDEN - [2018] FamCA 1060

FAMILY COURT OF AUSTRALIA

DARROW & MALDEN

[2018] FamCA 1060

FAMILY LAW – COSTS – JURISDICTION - Where the substantive proceedings were dismissed for want of jurisdiction - Where s117 of the Family Law Act1975 (Cth) does not apply as these are not ‘proceedings under the act’ – whether the Family Court of Australia has an implied power to order solicitors to pay costs – where the solicitors must have engaged in conduct that was more than ‘mere negligence’ and would amount to a ‘serious dereliction of duty’ – where the actions of the applicant and respondent’s solicitors were found to be inexcusable – Where the proceedings should never have been brought in the Family Court of Australia – Where previous orders are in place for the applicant to pay the costs of the second, third and fourth respondents on an indemnity basis and to indemnify the first respondent up until the date the issue of jurisdiction was raised – Orders made for the applicant’s solicitors to indemnify the applicant for any costs incurred in the proceedings – Orders made to restrain the first respondent’s solicitors in relation to any work for the proceedings.

Civil Procedure Act 2005 (NSW)
Family Law Act 1975 (Cth)

Darrow & Malden and Ors (2017) 57 Fam LR 142
Darrow & Malden and Ors (No. 2) [2017] FamCA 660
DJL & Central Authority (2000) 201 CLR 226
Jachimowicz & Jachimowicz (1986) 81 FLR 459

APPLICANT:

Ms Darrow

FIRST RESPONDENT:

Mr Malden

SECOND RESPONDENT:

Australia and New Zealand Banking Group Limited

THIRD RESPONDENT:

Mr Quaid and Mr Vincent

FOURTH RESPONDENT:

B Pty Limited

FIFTH RESPONDENT:

D Pty Ltd (ABN …) (Deregistered)

SIXTH RESPONDENT:	Ms Egan
FILE NUMBER:	NCC	1896	of	2015
DATE DELIVERED:	13 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

9 October 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT AND THE FIFTH AND SIXTH RESPONDENTS:

Legal Minds

SOLICITOR FOR THE FIRST RESPONDENT:

Watts McCray

SOLICITOR FOR THE SECOND RESPONDENT:

Kemp Strang Lawyers

SOLICITOR FOR THE THIRD AND FOURTH RESPONDENTS:

Wiggins Cheffings Lawyers (no appearance)

Orders

IT IS ORDERED

That Legal Minds indemnify the applicant in relation to any costs incurred in proceedings NCC1896 of 2015.
That Watts McCray be restrained from charging the first respondent in relation to any work done in proceedings NCC1896 of 2015 after 30 September 2016.

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 Darrow & Malden and Ors 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…

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 DARROW & MALDEN

Details

AGLC: DARROW & MALDEN [2018] FamCA 1060
Case: [2018] FamCA 1060
Decision Date: 13 December 2018

CaseChat Overview and Summary

In proceedings NCC1896 of 2015 before Rees J of the Family Court of Australia, the applicant and respondent sought orders concerning costs following the dismissal of the substantive proceedings for want of jurisdiction. The court was required to determine whether it possessed an implied power to order solicitors to pay costs in circumstances where the substantive proceedings were not considered to be "proceedings under the Act" for the purposes of section 117 of the *Family Law Act 1975* (Cth).

The court reasoned that for an implied power to order solicitors to pay costs to arise, the conduct in question must extend beyond mere negligence and constitute a serious dereliction of duty. Rees J found the actions of both the applicant's and the respondent's solicitors to be inexcusable, particularly given that the proceedings should not have been commenced in the Family Court of Australia. This finding was made in the context of existing orders for the applicant to pay the costs of the second, third, and fourth respondents on an indemnity basis and to indemnify the first respondent up to the point jurisdiction was raised.

Consequently, Rees J ordered that the applicant's solicitors, Legal Minds, indemnify the applicant for any costs incurred in the proceedings. Furthermore, the respondent's solicitors, Watts McCray, were restrained from charging the first respondent for any work undertaken in the proceedings after 30 September 2016.

Orders

Orders of the court

IT IS ORDERED

That Legal Minds indemnify the applicant in relation to any costs incurred in proceedings NCC1896 of 2015.

That Watts McCray be restrained from charging the first respondent in relation to any work done in proceedings NCC1896 of 2015 after 30 September 2016.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.