Dewell and Harris & Anor - [2019] FamCA 10

FAMILY COURT OF AUSTRALIA

DEWELL & HARRIS AND ANOR

[2019] FamCA 10

FAMILY LAW – SLIP RULE APPLICATION – Where substantial time has passed since judgment – Where the error was apparent on the reasons given – Where it was clearly the intention of the Court that certain assets not be included in the property division – Order for the balance sheet to be adjusted and amount payable to the parties adjusted accordingly.

FAMILY LAW – COSTS – Where the wife seeks an order for costs against the husband – Where the husband had both failed to make full and frank disclosure and actively lied to the Court during the proceedings – Where the actions of the husband caused the wife to incur additional costs – Where an order for costs is necessary to compensate the wife for the costs incurred to remedy, in evidentiary terms, the husband’s failure to disclose – Where the facts in the proceedings do not justify indemnity costs – Order for costs to be paid by the husband of $100 000 – Where the wife seeks an order for reimbursement of the costs of the single experts in the proceedings – Where nothing in the conduct of the husband detracted from the need to have single experts – Application dismissed – Where the respondent’s father seeks costs from the wife calculated on an indemnity basis –Where husband and father acted together in dealings of the husband to conceal evidence – Where the father submits the wife was unsuccessful in her applications pertaining to the father – Where a costs order in favour of the father is inappropriate – Application dismissed.

Family Law Act 1975 (Cth) s 117

Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225

APPLICANT:

Ms Dewell

RESPONDENT:	Mr Harris
2^ND RESPONDENT	Mr A Harris

FILE NUMBER:

SYC

5809

2011

DATE DELIVERED:

18 January 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:	Rees J
HEARING DATE:	8 January 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Williams

SOLICITOR FOR THE RESPONDENT:

Horton Rhodes Lawyers

COUNSEL FOR THE 2^ND RESPONDENT:

Mr Rosic

SOLICITOR FOR THE 2^ND RESPONDENT:

Milevski Family Lawyers

Orders

IT IS ORDERED

That within two months of the date of these orders, the husband pay to the wife the sum of $100,000 on account of her costs of the proceedings.
That the applications set out in Paragraphs 1, 2, 4, 5 and 6 of the wife’s Application in a Case filed 28 November 2018 be dismissed.
That the Application for Costs filed by the second respondent be dismissed.

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 Dewell & Harris 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…

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 Dewell and Harris & Anor

Details

AGLC: Dewell and Harris & Anor [2019] FamCA 10
Case: [2019] FamCA 10
Decision Date: 18 January 2019

CaseChat Overview and Summary

In *Dewell and Harris & Anor*, Rees J of the Family Court of Australia considered an application to vary a previous property settlement order and applications for costs. The primary dispute concerned whether certain assets should have been included in the property division as originally ordered, with a significant passage of time having elapsed since the initial judgment. The wife also sought costs against the husband, alleging non-disclosure and misleading conduct, and reimbursement for the costs of single experts. The second respondent, the husband's father, sought costs against the wife on an indemnity basis.

The court was required to determine whether to exercise its slip rule jurisdiction to correct an alleged error in the original property orders, given the delay. It also had to consider the wife's entitlement to costs against the husband, specifically whether the husband's conduct warranted a costs order and, if so, on what basis. Furthermore, the court needed to assess the wife's application for reimbursement of single expert costs and the husband's father's application for indemnity costs against the wife.

Rees J found that the error in the original property orders was apparent from the reasons given and that it was clearly the intention of the court that certain assets not be included in the property division. Consequently, the court adjusted the balance sheet and the amount payable between the parties. Regarding costs, the court found that the husband's failure to make full and frank disclosure and his misleading conduct had caused the wife to incur additional costs, justifying an order for costs to compensate her. However, the facts did not support an order for indemnity costs, and the husband was ordered to pay $100,000 on account of the wife's costs. The application for reimbursement of single expert costs was dismissed, as the husband's conduct did not detract from the necessity of engaging single experts. The application for costs by the second respondent (the husband's father) was also dismissed, as a costs order in his favour was deemed inappropriate, notwithstanding the wife's lack of success in her applications against him, given the husband and father acted together in dealings to conceal evidence.

Orders

Orders of the court

IT IS ORDERED

That within two months of the date of these orders, the husband pay to the wife the sum of $100,000 on account of her costs of the proceedings.

That the applications set out in Paragraphs 1, 2, 4, 5 and 6 of the wife’s Application in a Case filed 28 November 2018 be dismissed.

That the Application for Costs filed by the second respondent be dismissed.

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

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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