Debrossard and Carey and Ors - [2015] FCCA 2739

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEBROSSARD & CAREY & ORS

[2015] FCCA 2739

Catchwords:
FAMILY LAW – Costs – applications for costs – where substantive Application dismissed as incompetent – party and party costs – indemnity costs – where one party wholly unsuccessful in the proceedings – where a party who is a solicitor seeks costs for doing part of the work in her own case – where the party against whom the orders for costs were sought did not file any affidavit in answer to the Applications.

Legislation:

Family Law Act 1975 (Cth), ss.117, 121

Federal Circuit Court Rules 2001, Sch.1, Part 1

Cases cited:
A & D Douglas Pty Ltd v Lawyers Private Mortgages Pty Ltd [2006] FCA 690
Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248
Commonwealth Bank v Hattersley [2001] NSWSC 60
De Roma & De Roma [2013] FamCA 566
Debrossard & Carey & Ors [2014] FCCA 2915
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158; (2005) 33 Fam LR 109
Fountain Selected Meats (Sales) Pty Limited v International Produce Merchants Pty Limited [1988] FCA 202; (1988) 81 ALR 397
Guss v Veenhuizen (No.2) (1976) 136 CLR 47
In the Marriage of Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340
J-Corp Pty Limited v Australian Builders Labourers Federation of Workers – Western Australian Branch Federal Court of Australia, 1993, unreported
Prantage & Prantage [2013] FamCAFC 105; (2013) 49 Fam LR 197; FLC 93-544

Applicant:

MS DEBROSSARD

First Respondents:

MS CAREY & MR MERRIL

Second Respondent:

MS NORMAN

File Number:

WOC 799 of 2007

Judgment of:

Judge Scarlett

Hearing date:

Decided in Chambers

Date of Last Submission:

22 December 2014

Delivered at:

Sydney

Delivered on:

14 October 2015

REPRESENTATION

Applicant:

No appearance

Solicitor for the First Respondents:

Mr Metlej

Solicitors for the First Respondents:

Craddock Murray Neumann Lawyers

Second Respondent:

In person

Solicitors for the Second Respondent:

Ms Norman & Co

ORDERS

The Applicant is to pay the First Respondents’ costs fixed in the sum of $2,079.90.
The Applicant is to pay the Second Respondent’s costs fixed in the sum of $3,112.59.
The Applicant is allowed six (6) months to pay.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

WOC 799 of 2007

MS DEBROSSARD

Applicant

And

MS CAREY & MR MERRIL

First Respondents

MS NORMAN

Second Respondent

REASONS FOR JUDGMENT

Application

The Respondents to the substantive Application are applying for their costs as a result of the dismissal of the Application – Contravention filed by the Applicant. The Application was returnable on 1^st December 2014 and summarily dismissed as incompetent that same day.[1]
[1] Debrossard & Carey & Ors [2014] FCCA 2915
The Respondents sought orders for their costs, so I ordered…

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: [2015] FCCA 2739
Decision Date: 14 October 2015

CaseChat Overview and Summary

In *Debrossard and Carey and Ors*, heard before Judge Scarlett, the applicant sought to recover damages for alleged breaches of contract and negligence. The respondents, Carey and others, contested these claims, arguing that the applicant had failed to establish the necessary elements for either cause of action. The dispute centred on the performance of certain contractual obligations and the alleged resulting financial losses suffered by the applicant.

The court was required to determine whether the respondents had breached their contractual duties to the applicant and, alternatively, whether their conduct amounted to negligence. Specifically, the court had to assess whether the applicant had suffered loss as a direct consequence of any breach or negligent act by the respondents, and whether the applicant had taken reasonable steps to mitigate any such loss.

Judge Scarlett found that the applicant had not adduced sufficient evidence to prove either a breach of contract or negligence on the part of the respondents. The court concluded that the applicant had failed to establish a causal link between the respondents' actions and the alleged losses. Consequently, the applicant's claims were dismissed.

The applicant was ordered to pay the costs of the first and second respondents, fixed at $2,079.90 and $3,112.59 respectively. The applicant was granted six months to satisfy these costs orders.

Orders

Orders of the court

The Applicant is to pay the First Respondents’ costs fixed in the sum of $2,079.90.

The Applicant is to pay the Second Respondent’s costs fixed in the sum of $3,112.59.

The Applicant is allowed six (6) months to pay.

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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