Drake and Drake (No.2) - [2017] FCCA 1950

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRAKE & DRAKE (No.2)

[2017] FCCA 1950

Catchwords:
PRACTICE & PROCEDURE – Slip Rule – Effect of Rule 16.05 Federal Circuit Court Rules – whether orders can be amended to reflect intention of Court – amendment made.

PRACTICE & PROCEDURE – Costs – whether costs orders should be made where offer by husband significantly better than what wife received pursuant to orders.

Legislation:

Family Law Act 1975, ss.79, 75(2), 117

Federal Circuit Court Rules 2001, r.21.02

Cases cited:

Braithwaite & Braithwaite [2007] FamCA 468
Cochrane & Cochrane [2012] FMCAfam 984
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Collins & Collins (1985) FLC 91-603
Davida & Davida (Costs) [2011] FamCAFC 61
DJL v The Central Authority (2000) 201 CLR 226
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd(1995) 61 FCR 385
Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor (2005) 33 Fam LR 123
Grassby v R [1989] 168 CLR

Kohan & Kohan (1993) FLC 92-340

Latoudis v Casey (1990) 170 CLR 534

Monaco v Arnedo Pty Limited, unreported

Munday & Bowman (1997) FLC 92-784

Pawley & Pawley (No.2) [2017] FCCA 1100

Penfold & Penfold (1980) 144 CLR 311

Prantage & Prantage (2013) FLC 93-544
Re David Costs (1998) FLC 92-809
Reilly & Reilly (No.2) [2016] FCCA 1706
Teo & Guan (2015) FLC 93-653
Wrensted & Eades [2016] FamCAFC 46

Applicant:

MR DRAKE

Respondent:

MS DRAKE

File Number:

PAC 5137 of 2015

Judgment of:

Judge Obradovic

Hearing date:

8 March 2017

Date of Last Submission:

8 March 2017

Delivered at:

Parramatta

Delivered on:

18 August 2017

REPRESENTATION

Appearing for the Applicant:

Ms Monostiriotis

Solicitors for the Applicant:

Slater & Gordon Lawyers

Appearing for the Respondent:

Mr Zoutendijk

Solicitors for the Respondent:

Bell Lawyers

ORDERS

The Respondent is to pay the Applicant’s costs in the amount of $15,000 within 90 days.
The orders of 7 December 2016 are amended pursuant to the slip rule.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5137 of 2015

MR DRAKE

Applicant

And

MS DRAKE

Respondent

REASONS FOR JUDGMENT

Introduction

On 7 December 2016 the Court delivered its Reasons for Judgment and made orders for the adjustment of the parties’ property interests pursuant to s79 Family Law Act 1975. Following those orders, the husband made an application for costs by filing an Application in a Case on 9 January 2017. That application was returnable on 8 March 2017.
During discussions with the legal representatives of the parties, it became clear to the Court that there was an issue with the orders as made not reflecting the intention of the Court.

Slip Rule

The Court has implied powers to control its own processes.[1] This includes correcting an order that does not reflect the intention of the Court.[2]
[1] See for…

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 Drake and Drake (No.2)

Details

AGLC: Drake and Drake (No.2) [2017] FCCA 1950
Case: [2017] FCCA 1950
Decision Date: 18 August 2017

CaseChat Overview and Summary

In *Drake and Drake (No.2)*, heard in the Federal Circuit Court of Australia, the Applicant sought costs against the Respondent. The dispute concerned the quantum of costs to be awarded following earlier proceedings between the parties.

The primary legal issue before the court was to determine the appropriate amount of costs to be paid by the Respondent to the Applicant. A secondary issue arose regarding the amendment of previous orders pursuant to the slip rule.

Judge Obradovic ordered that the Respondent pay the Applicant’s costs in the sum of $15,000 within 90 days. The court also amended its previous orders of 7 December 2016, indicating that a minor error or omission in those earlier orders was being rectified under the slip rule.

Orders

Orders of the court

The Respondent is to pay the Applicant’s costs in the amount of $15,000 within 90 days.

The orders of 7 December 2016 are amended pursuant to the slip rule.

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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