DAVIES and Addis (No.2) - [2012] FMCAfam 1488

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DAVIES & ADDIS (NO.2)

[2012] FMCAfam 1488

FAMILY LAW – Application for costs.

Applicant:

MS DAVIES

Respondent:

MR ADDIS

File Number:

SYC 5992 of 2010

Judgment of:

Altobelli FM

Date of Last Submission:

27 September 2012

Delivered at:

Sydney

Delivered on:

9 October 2012

REPRESENTATION

Counsel for the Applicant:

Mr D. Ash

Solicitors for the Applicant:

Horowitz & Bilinksy

Counsel for the Respondent:

Mr A. Coombe

Solicitors for the Respondent:

Sally Nash & Co Lawyers

ORDERS

The Wife is to pay the costs of the Trustee in Bankruptcy, as agreed or as assessed limited to the costs associated with:
(a)Responding to the Wife’s application under s.79 of the Family Law Act 1975; and
(b)Responding to the Wife’s proceedings in the Supreme Court subsequently discontinued.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 5992 of 2010

MS DAVIES

Applicant

And

MR ADDIS

Respondent

REASONS FOR JUDGMENT

I provide the following oral reasons in relation to competing costs applications that arise out of a judgment handed down on 22 August and published as [2012] FMCAfam 866. Background matters are adequately recited in those reasons. On 19 September, the applicant wife filed a notice of appeal to the Full Court. It is not suggested by either party that I should postpone the adjudication of the costs issue because of this.
I had the benefit of written submissions. The second respondent trustee's submissions were received on 10 September, the applicant wife's submissions on 27 September. I am going to incorporate those submissions into these oral reasons, and in any event in the short discussion that follows I will be referring to the key points.
In determining the costs issues, one must not lose sight of what I described at paragraph 6 of my reasons as the long and convoluted history of this case. It is possible to pick up some of the threads of this litigation and deal with it discretely in determining the question of liability for costs, though I accept that it creates potential issues in relation to quantification. For example, to the extent that the wife's proceedings involved a claim under s.79 of the Family Law Act, it had no foundation. She quite properly abandoned the claim. Costs must follow from this. However, I could discern from the evidence no element of culpability that would merit indemnity costs. Accordingly, I will not make an order for indemnity costs, but I will order that the wife pay all of the trustee's costs attributable to the wife's s.79 application.
The second thread of the litigation that can be identified and dealt with discretely is as follows. The wife abandoned the first proceedings she took in the New South Wales Supreme Court against the trustee for a declaration of trust. I think costs must follow from this. Again, there'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.

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Details

Case: [2012] FMCAfam 1488
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Ms Davies, the applicant, filed an application for costs against Mr Addis, the respondent, following a complex family law dispute. The case, referred to as Davies & Addis (No.2), involved a lengthy history of litigation with multiple threads, including claims under section 79 of the Family Law Act 1975 and proceedings in the Supreme Court of New South Wales. The court was required to decide the costs associated with these proceedings, particularly focusing on the applicant's unsuccessful claims and the overall success or failure of the parties.

The court considered the nature of the litigation, acknowledging the convoluted history and the lack of culpability on either side that would warrant indemnity costs. The key issues involved the applicant's abandoned claim under section 79 of the Family Law Act and the proceedings in the Supreme Court that were subsequently discontinued. The court ruled that the applicant should pay the costs associated with these specific applications, as they were without foundation. However, regarding the larger bulk of the proceedings, the court found that both parties were partially successful and partially unsuccessful, making it impractical to apportion costs between them. The court ultimately decided to make no order for costs in relation to the majority of the proceedings to avoid prolonged disputation about quantification.

The court's reasoning was based on the understanding that both parties had achieved some success and some failure, making it difficult to assign costs in a meaningful way. The decision highlights the complexity of family law cases and the challenges in determining costs when the outcomes are mixed. The final orders mandated that the applicant pay the costs of the trustee in bankruptcy associated with specific applications, while no further costs were allocated for the rest of the proceedings.

Orders